Nucifora v Harlelect Pty Ltd ATF Harle Family Trust

[2013] QCATA 292

CITATION: Nucifora v Harlelect Pty Ltd ATF Harle Family Trust [2013] QCATA 292

PARTIES:	Mr Sam Nucifora Mrs Albina Nucifora (Applicant/Appellant)
v
Harlelect Pty Ltd ATF Harle Family Trust (Respondent)

APPLICATION NUMBER: APL181-13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: K Cullinane QC, Judicial Member

DELIVERED ON: 31 October 2013

DELIVERED AT: Brisbane

ORDERS MADE: Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – MINOR DEBT – where applicants engaged respondent to carry out works at premises – where applicants contend that work was only necessary because of earlier work not completed with due care – where Tribunal found there was no evidence to prove was done without due care – where applicants seek leave to appeal that decision – whether grounds for leave to appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i)

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. This is an appeal in a minor civil dispute. Leave to appeal is required pursuant to s 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 as amended.

1. For leave to be granted some matter of principle or general application must be involved or leave must be necessary to correct an injustice or there must be some other reason.

1. The Applicants engaged the Respondent to carry out certain electrical works at their premises.  There were separate works which were the subject of the proceedings.  The Respondent carried out work in May 2012.  This work is not in itself the subject of a complaint but it is said that it only became necessary because the Respondent had not carried out earlier work in May 2010 with due care.  This work was required because of an ant infestation.

1. Other work was carried out in 2011.  This involved the laying of new cables and conduit from a power pole to a pump shed following cyclone damage to the existing pole.

1. Here the complaint is that the work should not have proceeded in the way it did without their express permission.

1. The Applicants have in their notice of leave to appeal set out their challenge to the findings made against them.  The Respondent has not provided any additional outline on the hearing of the application.

1. The issues were largely factual although one involved consideration of whether the Respondent owed a duty to the Applicants to obtain the Applicants’ permission before carrying out the work it did in laying the cables and the conduit.

1. The Tribunal set out the legal principles applicable at some length and these cannot be disputed.

1. It was the male Applicant’s contention that the 2010 work must have been defective for the ants to return to where they were found.  The Respondent on the other hand pointed to evidence which was that following the cyclone Yasi there was an open ended conduit sticking out of the ground when the 2011 work was carried out.  There was some dispute as to whether this would have allowed the ants to enter and be the explanation for what was found. The Tribunal found that the evidence did not permit a finding that the cause of the return of the ants was defective work as opposed to the breach of the conduit.

1. The onus was on the Applicants and the Tribunal, before whom the various parties were present, was not satisfied that the allegation was proved.  This was a finding open and there is no basis in my view to disturb it.

1. The other issue concerned the laying of cable following the need to erect a new switchboard.  The relevant Australian Standard requires that there be some barrier to protect and warn of the presence of the cabling where the cabling was less than 500mm from the surface. Part of the cabling fell into this category.  The Applicants found that a concrete barrier had been placed in this position when a digger struck this when construction work was being carried out.

1. The Applicants contend that this work should not have been done without their consent and this would not have been forthcoming if sought.  I do not understand there to be any claim for loss or damages.

1. The work was carried out in accordance with the appropriate standards. There was no express term which would support the Applicants’ case nor in my view could one be implied. There is nothing to suggest the work was not carried out in a good and workmanlike manner.

1. The Tribunal found in my view correctly against the Applicants on this ground.

1. There is in my view no basis for the grant of leave.

1. The application is refused.