Plastic Fabrications Australia Pty Ltd v Coalfield Services

[2011] QCATA 218

CITATION: Plastic Fabrications Australia Pty Ltd v Coalfield Services [2011] QCATA 218

PARTIES:	Plastic Fabrications Australia Pty Ltd (Applicant/Appellant)
v
Coalfield Services (Respondent)

APPLICATION NUMBER:   APL191-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON: 11 August 2011

DELIVERED AT: Brisbane

ORDERS MADE:     

Application for leave to appeal refused.

CATCHWORDS: 

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where the respondent accepted a quote from Plastic Fabrications Australia Pty Ltd to construct a 13,000 litre tank and paid a deposit of $19,666 – where the tank was never constructed and the respondent brought proceedings in QCAT’s Minor Civil Disputes jurisdiction – where the learned Magistrate effectively ordered that the respondent was awarded a full refund of the deposit he had paid – whether leave to appeal should be granted

Queensland Civil and Administrative Tribunal Act2009, s 142

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. Mr Shane Watts, trading as Coalfield Services, accepted a quote from Plastic Fabrications Australia Pty Ltd to construct a 13,000 litre tank in December 2009.  A deposit of $19,666 was paid.  The tank was never constructed and Mr Watts brought proceedings in QCAT’s Minor Civil Disputes jurisdiction to recover that sum.

2. The matter was heard by a Magistrate, sitting as a QCAT Member, at Mackay on 28 April 2011.  Plastic Fabrications was represented by its Director Mr Wayne Randall.  After hearing evidence from both Mr Watts and Mr Randall and reading some documents relating to the transaction the learned Magistrate found in Mr Watts’ favour and ordered that Plastic Fabrications pay him $19,666 plus costs of $255.  In effect, then, Mr Watts was awarded a full refund of the deposit he paid.

3. Plastic Fabrications seeks leave to appeal that decision. An appeal can only be brought with the leave of this Appeal Tribunal: QCAT Act s 142(3)(a)(i).

1. Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief.  Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?

1. The learned Magistrate’s Reasons are, with respect, short but effective.  The transcript of the hearing shows that he allowed both parties to present their evidence on oath and question each other, and that he intervened appropriately when matters need to be clarified.

2. He then gave oral reasons setting out his conclusion that, relevantly, the parties had contracted for the construction of a tank for $24,579.50 in December 2009 and Mr Watts had subsequently paid a total deposit of $19,666; that in February 2010 there was a further conversation between Mr Watts and Mr Randall, in which the former indicated his interest in a bigger tank, which would hold 15,000 litres and the parties began to negotiate about that possibility; that on 2 March 2010 Plastic Fabrications gave Mr Watts a quote for the larger tank of $42,255.24; and, that Mr Watts ultimately determined that he could not afford the larger tank and eventually asked for the refund of his deposit.

3. The learned Magistrate’s reasons include specific findings that the negotiations about the 15,000 litre tank went on for some considerable time and, in the meantime, Plastic Fabrications had used the material originally intended for the 13,000 litre tank on other projects. 

4. Then, the Magistrate said:

   I am of the view that the contract for the 13,000 litre tank was terminated mutually and by consent when negotiations entered in for the 15,000 tank, and I’m comforted by the fact that Mr Randall then went on to use the material he had bought for that 13,000 tank, for other purposes. 

   I find that the agreement was in fact terminated by consent, and if I am wrong in that, it has also been frustrated by, in my view, there were no time limits, but in all contracts where time has not been specified time is of the essence, and in my view, 18 months is out of the – it’s too much.

5. It was ordered that the application for leave to appeal be determined on the basis of written submissions from the parties.  Neither chose to do so, each party indicating that it was content to reply upon the evidence before the Magistrate. 

[10]  Plastic Fabrications’ grounds of appeal are that Mr Watts was not truthful; and that, as Mr Randall now claims, he was ‘… unaware that I was able to have a witness present and my witness would be able to assist with the facts and circumstances of this case’.

[11]  The transcript of the proceedings show that Mr Randall did raise the possibility of calling a witness but the learned Magistrate, correctly, pointed out that he should have ensured the witness either came in or was available to give evidence in some other way.  It is, otherwise, apparent that Mr Randall understood that the hearing was intended to determine the matter; and, that his claim that he was unaware that he could call a witness indicates a lack of appropriate thought and preparation before the hearing.  It is also unclear from the transcript how the evidence of the witness could have affected the outcome.  It is, then, apparent that the proceedings did not involve any element of procedural unfairness.

[12]  The learned Magistrate conducted the proceedings carefully, effectively and fairly by ensuring that each party had the opportunity to present its case.  He asked a number of questions himself and guided the parties about the conduct of their respective cases.  He gave reasons which shortly but comprehensively addressed all the issues in the matter, and in those reasons made findings that were reasonably open on the facts.

[13]  No error is apparent. Leave to appeal must be refused.