Piric & Anor v Claudia Tillier Holdings Pty Ltd

[2012] QCATA 152

CITATION: Piric and Anor v Claudia Tiller Holdings Pty Ltd [2012] QCATA 152

PARTIES:	Hamlet Piric Nina Piric (Applicants/Appellants)
v
Claudia Tiller Holdings Pty Ltd t/as Gold Coast Luxury Pools (Respondent)

APPLICATION NUMBER:   APL393-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON: 21 August 2012

DELIVERED AT: Brisbane

ORDERS MADE:      Application for leave to appeal refused.

CATCHWORDS: MINOR CIVIL DISPUTE – dispute about payment for building pool – failure to consider evidence which entitled owners to refuse payment – failure of adjudicator to consider pool builder’s contractual breaches – leave not granted where tribunal prefers evidence of one witness over another – no error by tribunal in findings of fact

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

1. This dispute concerns the construction of a swimming pool and surrounds at Mr and Mrs Piric’s residential premises at Oxenford.  They entered into a contract with the respondent, a pool building business.  For all practical purposes their dealings were with Mr Lupton Scott, who appeared for the business at the original hearing in QCAT.

1. The pool builder brought proceedings in QCAT’s Minor Civil Disputes jurisdiction claiming that Mr and Mrs Piric had failed to pay the balance of the contract price.

1. The matter came on for hearing before a QCAT Adjudicator on 4 October 2011.  Mr Scott appeared for the pool builder, and Mr Piric represented himself and Mrs Piric. 

1. In the course of the proceedings Mr Piric claimed that he and Mrs Piric had not received credit for a payment of $7,900 made to the pool builder.  The learned Adjudicator heard the evidence of all the parties, but then adjourned the matter to enable Mr Piric to file and serve evidence proving that payment.

1. The matter came back before the Adjudicator on 21 October 2011.  Mr and Mrs Piric were not able to prove that payment.  Indeed, their evidence on this second occasion was that Mr Piric had discovered that it had never been transferred to the pool builder and in fact was deposited back into Mr Piric’s account on the same day.  Mr Piric was unable to explain how or why that occurred.

1. In the course of her subsequent Reasons, in which she found in favour of the pool builder and ordered that the Pirics pay $6,184.70, the learned Adjudicator made specific findings that the payment of $7,900 had never been made; that Mr Piric’s assertion that he had paid the sum of $7,900 was, as he well knew at the original hearing, a “total fabrication”; that his complaints about alleged defects in the construction of the pool and surrounds were not borne out by any evidence; and, that where conflicts in the evidence arose she preferred the evidence of the pool builder Mr Scott.

1. In particular, the learned Adjudicator concluded that Mr Piric was “…prepared to distort the facts and to give evidence which was inconsistent”.  She also concluded that, in so far as any work was yet to be performed under the pool building contract, that only occurred because the Pirics had failed to comply with it and pay the progress payments.

1. In their application for leave to appeal (and appeal if leave is granted) the Pirics have presented evidence which, they say, reveals defects in the construction which entitled them to refuse payments.  They also assert that the learned Adjudicator did not take into account what are alleged to be contractual breaches on the part of the pool builder, and that she wrongly focused upon Mr Piric’s mistaken statement, at the hearing, about the alleged payment of $7,900.

1. The QCAT Act requires that before a party can appeal a Tribunal decision in a minor civil disputes matter, it must persuade the Appeal Tribunal that it should have leave to do so: QCAT Act, section 142(3)(a)(i).

[10]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.

[11]An error of this kind, which might lead to a party being granted leave to appeal, does not arise simply because the Adjudicator has preferred one version of the facts to another, or preferred the evidence of one witness over another.  Findings of fact will not usually be disturbed by the Appeal Tribunal if the findings by the original decision maker have apparent, rational support in the evidence presented to the Adjudicator.

[12]Nor will leave to appeal be granted where a party simply desires to re-argue the case on existing or additional evidence.  One clear purpose of the requirement for leave, before a party has the right to appeal, is to prevent any attempt to simply conduct a retrial on the merits of the case.

[13]Here, the learned Adjudicator heard evidence from Mr Piric that he had made a large payment to the pool builder.  When, rather surprisingly, Mr Piric was unable to produce evidence of that payment (although he must have known evidence of that kind would be relevant at the hearing) she fairly and properly adjourned the matter to allow him to produce that evidence.  That opportunity revealed to her, when the matter came back for hearing, not only that Mr Piric’s assertion was wrong but, as she said, that he must have known it was wrong.  On any view that finding about Mr Piric’s evidence was reasonably open, cannot be said to be plainly wrong or to contain any apparent error and, indeed, is unsurprising.

[14]In her Reasons the learned Adjudicator also dealt with the Pirics’ complaints about what they said were some defects in the construction of the pool and its surrounds.  She concluded that any residual problems with the pool were the product of the Pirics’ failure to make the progress payment, which constituted a breach of their agreement with the pool builder.  Again, that finding was reasonably open to her within both the factual and legal context of this dispute, and contains no apparent error.

[15]Finally, as she clearly disclosed in her Reasons, the learned Adjudicator determined that where there were factual disputes between Mr Scott and Mr Piric, she should prefer Mr Scott’s version.  Again, she explained the basis for that finding: she was plainly unimpressed with Mr Piric’s assertion at the first hearing that he had made the payment when he had no evidence to establish that and, indeed, when allowed the opportunity to do so, presented evidence to show the payment had not been made in circumstances where his assertion that he did not know that fact was “a total fabrication”.  That finding sits comfortably with the evidence heard by the learned Adjudicator and cannot, on any view, be described as surprising, unfair or against the general weight and tenor of all the evidence.

[16]This is a case in which the learned Adjudicator took care to allow the parties a fair and proper hearing and, indeed, to allow Mr Piric an extra opportunity to present evidence which he should have had available at the original hearing.  She also took care to explain her decision to the parties and did so in a way which plainly accords with the evidence presented to her.  Her Reasons are lengthy and detailed, and address all the factual and legal issues.  No error is apparent on the face of them; indeed, it is compelling that she reached the only reasonable and rational decision open to her in the face of that evidence.  The application for leave to appeal must be refused.