Peron v Benck Marketing Services Pty Ltd
[2012] QCATA 84
•18 May 2012
| CITATION: | Peron v Benck Marketing Services Pty Ltd [2012] QCATA 84 |
| PARTIES: | Nadia Florina Peron (Applicant/Appellant) |
| v | |
| Benck Marketing Service Pty Ltd t/as Patio World (Respondent) |
| APPLICATION NUMBER: | APL384-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 18 May 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Application for leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – MINOR DEBT CLAIM – where the Applicant had been ordered to pay the respondent a sum of money for a minor debt claim – whether the Magistrate made an error in the nature of a finding against the weight of the evidence Building Act1975 Cachia v Grech [2009] NSWCA 232 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 |
APPEARANCES AND REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Ms Peron and Patio World entered into a contract in 2010 for building work at her home at Walkerston. In December 2010, Patio World began proceedings against her for $12,260 which, it alleged, was still owed under the agreement, and also for $1,200 for extra work allegedly undertaken by way of an agreed variation.
The application came on for a hearing before a Magistrate, sitting as a QCAT member, on 26 September 2011. After hearing evidence and submissions from Ms Peron and her husband, and Mr Rick Shirreff for Patio World, the learned Magistrate ordered that Ms Peron pay Patio World the sum of $13,460 for its claim, plus filing and service fees.
Ms Peron seeks leave to appeal the Magistrate’s decision. Under the QCAT Act an appeal cannot be brought unless this Appeal Tribunal first gives leave to do so: s 142(3)(a)(i).
The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[4]
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at 2.
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
The Appeal Tribunal directed that the application for leave (and the appeal, if leave is granted) would be determined ‘on the papers’ – that is, on the basis of written submissions from the parties. I have also obtained, and listened to, the audio recording of the proceedings before the learned Magistrate.
It is clear from the recording, and from the reasons the Magistrate gave to the parties at the conclusion of the hearing, that he concluded that Patio World was entitled to full payment under the agreement because it had obtained a final certificate from a building certifier – an independent professional who certified, in formal documents produced to the Magistrate, that the work had been carried out in accordance with the building approval and best industry practice.
The learned Magistrate said that the certificate presented, on its face, conclusive evidence that Patio World had satisfied its contractual obligations and was entitled to payment.
In her written submissions, and in oral submissions to the Magistrate, Ms Peron and her husband were critical of the independence and ability of the building certifier, and complained that certification was actually provided at a time when Patio World had not properly completed the works – including a failure to properly counter sank decking screws, repair or replace downpipes, and provide an apron flashing to an awning.
In the course of the evidence, however, it became apparent that after they expressed some concerns about the independence of the person first asked to provide a certificate, another certifier was engaged (although, from the same group).
In essence, the learned Magistrate was not persuaded by the evidence of Ms Peron and her husband that the work had not been properly done. He preferred the evidence of the certifier, contained in the certificates and, in particular, the final inspection certificate of 26 July 2011. In doing so, he chose to prefer the evidence of a party with specific responsibility, under the Building Act1975 and the Building Regulation 2006 to prepare a certificate of that kind if, but only if, that inspector is satisfied the work accords with any building approval or certificates of inspection, and has been carried out in accordance with best industry practice.
This is a case in which one party is dissatisfied with a Magistrate’s decision when choosing between conflicting evidence. By its nature, that exercise will usually be based on what is often called the ‘weight’ of evidence. Here, the learned Magistrate’s decision reasonably reflected where the weight of the evidence lay and, for that reason, is not open to any fair criticism.
Leave to appeal could only be granted here if Ms Peron could show that, in preferring the certifier’s evidence (and that of the builder), the learned Magistrate made an error in the nature of a finding against the weight of the evidence.
In making the relevant finding, the learned Magistrate was obliged to explain his reasoning. He did so: he apparently concluded that, on its face, the certificate showed proper compliance with building standards and also provided persuasive, independent corroboration for Patio World’s claims, and nothing in the evidence he had heard from Ms Peron or her husband persuaded him to a different view.
It cannot be said that, in reaching that conclusion, he made any obvious error. He had to make a choice between the evidence in the certificates to the effect the work had been satisfactorily completed, Mr Shirreff’s evidence to the same effect, and the Perons’ contrary allegations. The Perons’ evidence was not so overwhelmingly strong or compelling as to suggest that, in making the choice he did when weighing this evidence, the learned Magistrate made a mistake.
In the absence of any evidence of an error on the part of the learned Magistrate, no basis for a grant of leave to appeal has been established. It is also appropriate to observe, with respect, that the learned Magistrate took care to ensure that both parties were able to present their cases, and say as much as they wished in the way of submissions and, in that sense, the exercise of hearing and determining the matter was procedurally fair and observed all the principles of natural justice.
For these reasons application for leave to appeal must be refused.
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