Phylando Pty Ltd t/as Ezybake v Powermaxx
[2013] QCATA 330
•25 November 2013
| CITATION: | Phylando Pty Ltd t/as Ezybake v Powermaxx [2013] QCATA 330 |
| PARTIES: | Phylando Pty Ltd t/as Ezybake (Applicant) |
| v | |
| Powermaxx (Respondent) |
| APPLICATION NUMBER: | APL319-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM |
| DELIVERED ON: | 25 November 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal is refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549 Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
APPEARANCES and REPRESENTATION (if any):
The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Phylando Pty Ltd t/as Ezybake is a commercial pastry maker. In 2012, because of rising electricity costs, Ezybake engaged Powermaxx to do a power audit. Powermaxx recommended the installation of two capacitor banks which, it said, would reduce annual power consumption costs by at least 8%. Ezybake installed the capacitor banks but it was not satisfied with the result. It filed a claim for a refund of the costs of the capacitor banks. An Adjudicator dismissed Ezybake’s claim.
Ezybake wants to appeal that decision. It says that the learned Adjudicator accepted expert evidence from Powermaxx when he refused to accept expert evidence from Ezybake. Ezybake also argues that the learned Adjudicator misapplied the evidence.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. 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 caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appeals 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 learned Adjudicator refused to accept evidence from both parties. He did not accept copies of journal articles from Ezybake because the authors of those articles were not available to give evidence[5]. For the same reason, he did not accept an article from the Financial Review submitted by Powermaxx[6].
[5]Transcript page 1-14, lines 24 – 42.
[6]Transcript page 1-16, lines 8 – 16.
Powermaxx did hand up copies of emails just before the learned Adjudicator adjourned to make his decision[7]. The learned Adjudicator asked Mr Do, on behalf of Ezybake, whether he had seen the documents[8]. Mr Do confirmed that he had seen the documents. There is a suggestion in the transcript that he agreed with the content[9].
[7]Transcript page 1-33, line 20 to page 1 – 34, line 15.
[8]Transcript page 1-34, line 6.
[9]Transcript page 1-34, lines 13 – 15.
The learned Adjudicator did not refer to these documents in his reasons for decision. They do not appear to have been of any assistance to him. The learned Adjudicator did not fail to provide procedural fairness in accepting this material.
The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[10] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[11] However, the appeal tribunal must exercise its own discretion when considering whether the original decision maker was in error. As the High Court said in Fox v Percy:
In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.[12]
[10]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[11]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[12]Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
The argument between the parties was a technical one. Both parties made detailed oral submissions about whether or not Powermaxx achieved a saving. The learned Adjudicator had the benefit of those submissions. I have read the transcript carefully. The evidence supports the learned Adjudicator’s decision and there is nothing in the transcript to persuade me that the learned Adjudicator should have taken a different view of the facts.
There is no question of general importance that should be determined by the appeals tribunal. There is no reasonably arguable case that the learned Adjudicator was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.
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