Pointon v Capsis Holdings Pty Ltd

[2018] QCATA 180

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Pointon & Anor v Capsis Holdings Pty Ltd [2018] QCATA 180

PARTIES:

TAMMI POINTON

(first appellant)

GLASSHOUSE MOUNTAINS TAVERN
(second appellant)

v

CAPSIS HOLDINGS PTY LTD

(respondent)

APPLICATION NO/S:

APL148-18

ORIGINATING APPLICATION NO/S:

MCDO84-17 (Caboolture)

MATTER TYPE:

Appeals

DELIVERED ON:

26 November 2018

HEARING DATE:

26 October 2018

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

Application for Leave to Appeal refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL
– GENERAL PRINCIPLES – RIGHT OF APPEAL – where contractor installed a digital security system at a Tavern – where proprietor claimed the system not reasonably fit for purpose or of acceptable quality or both – where proprietor claimed lack of procedural fairness at hearing with late production of documents – where dispute over scope of work – where Adjudicator accepted the evidence of the contractor in preference to that of the proprietor

Competition and Consumer Law Act 2010 (Cth), sch 2 ('Australian Consumer Law'), s 54, s 55, s 61

House v R (1936) 55 CLR 499
Norbis v Norbis (1986) 161 CLR 513
Pickering v McArthur [2005] QCA 294

APPEARANCES & REPRESENTATION:

First and Second Appellants:

Self-represented by T Pointon

Respondent:

Self-represented by M Capsis and L Capsis

REASONS FOR DECISION

1. Ms Tammi Pointon, acting on behalf of Glasshouse Mountains Tavern, engaged Capsis Holdings Pty Ltd (‘Capsis’) to replace an existing security system at the Tavern with another newer system.

2. Capsis did the work but Ms Pointon was not satisfied with the equipment and its performance. She refused to pay for the work and Capsis sued in the Tribunal claiming $9,306 for the cost of the system and an additional $9,304.64 for costs incurred in attempting to recover the amount claimed through commercial agents.

3. The matter was heard before an Adjudicator at Caboolture Magistrates Court on 18 May 2018. The learned Adjudicator handed down his decision on 5 June 2008 awarding Capsis an amount of $8,976 against Glasshouse Mountains Tavern for the work done at the Tavern plus $417.70 with respect to allowable costs and interest of $987.36. The debt collection costs were refused. Ms Pointon was ordered to pay $183.15 for work done at her home plus interest of $18.15 on that.

4. Ms Pointon and Glasshouse Mountains Tavern want to appeal the decision.

5. Given this is an appeal from a decision made in the Tribunal’s Minor Civil Dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.[1]

   [1]QCAT Act, s 142(3)(a)(i).

6. Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.[2]

   [2]Pickering v McArthur [2005] QCA 294, [3].

7. The grounds of appeal as formulated by the appellants are far from clear. There were a number of complaints from which Ms Pointon resiled at the hearing of the application for leave to appeal. Endeavouring to put those that remain into succinct comprehendible terms, the grounds of appeal appear to be as follows:

   (a)Ground 1: That the Tribunal erred in concluding that the electronic security system installed by Capsis was reasonably fit for purpose or of acceptable quality;

   (b)Ground 2: That the appellants were not accorded procedural fairness in that Capsis was allowed to produce documents at the hearing which had not been provided to the appellants before the hearing and which took the appellants by surprise;

   (c)Ground 3: That the learned Adjudicator erred in accepting evidence by Capsis that it attended Ms Pointon’s home to do work where there was no sufficient evidence of an attendance on the date claimed or that the work was done;

   (d)Ground 4: That the Tribunal erred in allowing the claim by Capsis for the supply of “buzzers” but without giving reasons why the claim was allowed;

   (e)Ground 5: That the Tribunal erred in allowing the claim by Capsis for work done at the office of Ms Pointon’s brother which was not authorised by either Ms Pointon or Glasshouse Mountains Tavern but by other unauthorised representatives at the Glasshouse Mountains Tavern;

   (f)Ground 6: That the Tribunal failed to accord procedural fairness to Ms Pointon during the conduct of the hearing by permitting Mr Capsis to make degrading remarks sotto voce throughout the conduct of the hearing;

   Ground 1

   That the Tribunal erred in concluding that the electronic security system installed by Capsis was reasonably fit for purpose or of acceptable quality.

8. By s 54 of the Competition and Consumer Law Act 2010 (Cth) sch 2 (‘ACL’), if a person supplies goods to a consumer in trade or commerce there is a guarantee that the goods are of acceptable quality. Goods are of acceptable quality if they are as fit for all the purposes for which goods of that kind are commonly supplied.

9. By s 55 of the ACL if a person supplies goods in trade or commerce to a consumer there is a guarantee that the goods are reasonably fit for any disclosed purpose and for any purpose for which the supplier represents that they are reasonably fit.

10. By s 61 of the ACL if a person supplies services to a consumer in trade or commerce and the consumer expressly or by implication makes known to the supplier any particular purpose for which the services are being acquired by the consumer there is a guarantee that the services, and any product resulting from the services, will be reasonably fit for that purpose.

11. Ms Pointon’s claim fell for consideration within one or more of the aforementioned provisions of the ACL. Though those provisions were not clearly specified by her, in her written response to the initial claim she referred to failed guarantees and warranties.

12. Ms Pointon says there was evidence before the learned Adjudicator to show that the system did not do what it was supposed to do. She said what it was supposed to do was be able to support more than 16 cameras, be remotely accessed including from mobile telephones and tablets and be able to store more than one month’s data.

13. Mr Capsis said at the hearing that he told Ms Pointon before he was asked to quote for the job that even if she was getting fast internet speed at home it would not fix the problem with slow internet speed at the Tavern. He told her that the equipment would only transmit data as fast as the internet at the Tavern allowed.[3]

    [3]Transcript 1 – 13, Line 30.

14. Mr Capsis said it was no term of his engagement that the system must have the capacity to record and store one month’s data from the security cameras. From the outset all he was asked to do was install a newer system with extra cameras and tidy up the existing system which was old and in poor condition.

15. Mr Capsis tendered a report from Electrocraft Australia dated 8 June 2016 which said they had attended the Tavern and found all the programming and remote access correct. The system was working as per manufacturer’s specifications. When logging in remotely however, via the internet, the images were slow to update and one could not view multiple cameras as was usually the case. They carried out a remote internet speed test and the speed was below average.

16. Ms Pointon claimed at the hearing of the application for leave to appeal that there was evidence from Naskam Security available to show that the Capsis system did not work. She claimed it had been tendered but not considered.

17. When one examines the transcript of the hearing the following exchange occurred:

    Ms Pointon: … I don’t know why it did not work remotely. I don’t have the technical expertise to know. But I do know at the moment that in November of ’16 I contacted Naskam, who had put in my original – my earlier system. I contacted them to come in. And even though I’m not supposed to touch Mark’s system, they worked on it for two and a half hours and could not get it going. They could not get it happening remotely. Could not get it going.[4]

    …

    Adjudicator Stanton: And when did you have the system installed?

    Ms Pointon: In – it was either November or December ’16.

    Adjudicator Stanton: And what was the cost of that system?

    Ms Pointon: That has been supplied. I think it was $3,750. I do have evidence of that here if you require it.

    Adjudicator Stanton: And that you say that system is working satisfactorily?[5]

    [4]T 1 – 73, L 33 – 38.

    [5]T1 – 74, L 4 – 14.

18. In cross examination Mr Capsis asked Ms Pointon if she had a letter from Naskam to say they tested his system and that it was not working. She said no.[6]

    [6]T1 – 75, L 30.

19. The learned Adjudicator said in giving his reasons for decision that no ‘further’ evidence was provided to the Tribunal in respect of the new Naskam system nor any other evidence as to the success or otherwise of the new Naskam system nor any evidence about the actual internet speed achieved at the Tavern or at Ms Pointon’s home as at the relevant dates.[7]

    [7]Reasons for decision page 1 – 6, Lines 4 – 8.

20. It is clear that Ms Pointon did not tender any documentation from Naskam at the hearing to show that the Capsis system ‘did not do what it was supposed to do’.

21. At the hearing of the application for leave to appeal, given she maintained (strangely enough supported by Mr Capsis) that a document from Naskam had been handed up, I allowed a copy of the document concerned to be tendered. The document amounted to a quotation which provided as follows:

    Supply, install and commission new NVR – note the following:

    It must go on every computer at Tavern (2 computers and also at home in Caboolture) smart phones (Tami and the manager’s phone) x 2 and tablet – must work on taverns internet.[8]

    [8]Exhibit 1.

22. There is nothing of significance in the document. There is nothing in that document which supports Ms Pointon’s claim that Naskam found the Capsis system wanting.

23. Mr Capsis gave evidence that he raised the problem of the poor internet at the Tavern with Ms Pointon before being asked to quote on a new system. His evidence was he told her she needed a good internet at the Tavern and that all the devices would only transmit data as fast as the internet allowed. The learned Adjudicator accepted that evidence. He said he preferred the evidence of Mr Capsis to that of Ms Pointon. He found him to be a truthful witness. The learned Adjudicator was entitled to form a view about the credibility of the witnesses before him. It is not for the Appeal Tribunal to gainsay him on that without good cause.

24. In House v R[9] the High Court explained:

    It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.[10]

    [9](1936) 55 CLR 499.

    [10]Ibid 504.

25. In Norbis v Norbis[11] the High Court elaborated on the sense in which ‘discretion’ was used in that earlier decision. Discretion signifies a number of different legal concepts including value judgments:

    If the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance. In conformity with the dictates of principled decision-making, it would be wrong to determine the parties' rights by reference to a mere preference for a different result over that favoured by the judge at first instance, in the absence of error on his part. According to our conception of the appellate process, the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal.[12]

    [11](1986) 161 CLR 513.

    [12]Ibid 518-519.

26. The learned Adjudicator was entitled to accept the evidence of Mr Capsis. He was entitled to conclude that the problem that arose was caused by slow internet speed at the Tavern and that Mr Capsis had warned Ms Pointon about that problem before he was contracted,[13] and that it was no part of the contract between Mr Capsis and the Tavern that the system record one month’s visual data.

    [13]Reasons for decision page 1 – 12, Lines 9 – 11.

27. The learned Adjudicator went on to find that the goods were of an acceptable quality and services were rendered with due care and skill and that the goods and services were reasonably fit for the disclosed purpose. They were operating as required subject to the limitations placed on it by the internet speed, a limitation which he found both parties were well aware of at all relevant times.

28. He concluded that Capsis had not breached any of the statutory consumer guarantees under the ACL and on this basis dismissed Ms Pointon’s counter application.[14]

    [14]T 1 – 12, L6 – 36.

29. There is no discernible error made here by the learned Adjudicator. This ground of appeal has very limited prospects of success.

    Ground 2

    That the appellants were not accorded procedural fairness in that Capsis was allowed to produce documents at the hearing which had not been provided to the appellants before the hearing and which took the appellants by surprise.

30. Ms Pointon refers here to the Electrocraft Australia report abovementioned dated 8 June 2016 and an email from a witness, Finnbar Gormley, dated 8 May 2018. Mr Capsis handed these documents up at hearing. Mr Capsis said he had served copies of the documents at the registered office of the appellant company but Ms Pointon said she had not received them. They had only been posted a couple of days before the hearing.

31. Copies were then provided to Ms Pointon and she was allowed time to read the documents. The following exchange then occurred:

    Ms Pointon: Two things at once. Thank you. Your honour, I do not have anything here, but I could have had something here, to address Finn Gormley letter, dated 8 May 2018. And I do not have an issue with the other…

    Adjudicator Stanton: Well, the email of 8 May 2018 – I, at this point in time, do not know what the extent of the relevance of that email is, although what are your submissions as a result of only receiving that email today?

    Ms Pointon: I cannot counteract anything that’s said on that email.

    Adjudicator Stanton: Well, that may be so. Is it the case that you’re seeking an adjournment of the matter, or is it the case that…

    Ms Pointon: No

    Adjudicator Stanton: You wish to make other submissions?

    Ms Pointon: No, I am not seeking an adjournment. But if I had have had this earlier, I could have had written affidavits to respond to it.

32. Ms Pointon was accorded procedural fairness. It is quite clear that the Adjudicator was offering her the chance of an adjournment to obtain other evidence if necessary because of the late production of the documents. She declined.

33. Furthermore, it was not the report from Electrocraft Australia that concerned her but the statement from Finn Gormley. Indeed she said she was not troubled by the Electrocraft Australia report. Ms Pointon’s calculation that she had nothing to worry about from the Electrocraft Australia report was a matter entirely up to her. It was up to her how she ran her case. That miscalculation, if it be a miscalculation, had nothing to do with lack of procedural fairness being accorded her at the hearing.

34. Ground two fails.

    Ground 3

    That the learned Adjudicator erred in accepting evidence by Capsis that it attended Ms Pointon’s home to do work where there was no sufficient evidence of an attendance on the date claimed or that the work was done.

35. This concerns the claim by Capsis for payment of an invoice dated 23 February 2016 for $165. At the hearing of the application for leave to appeal Ms Pointon claims the adjudicator ignored evidence that she had paid this account. A careful perusal of the transcript of the hearing fails to disclose that at any time Ms Pointon told the learned Adjudicator that.

36. Ms Pointon was asking Mr Capsis questions about the invoice at one stage and turned to the learned Adjudicator and asked whether she could ask any question she liked. The learned Adjudicator said she could ask any question she liked about the invoice as long as it was relevant. But given that opportunity, Ms Pointon failed to put to Mr Capsis the proposition that the account had been paid.

37. The suggestion seems to be that the date on the invoice was wrong and that is relevant because initially at the hearing, Mr Capsis had said it was on this occasion, attending to an electrical issue at her home, that Ms Pointon had asked him to quote on a security system for the Tavern. But the quotation for the Tavern was given before the work claimed for in the invoice was done.

38. Later in the hearing Mr Capsis corrected his assertion about being asked to quote for a new system at the time of the visit billed in the invoice.

39. The learned Adjudicator accepted that work had been done at Ms Pointon’s home on 23 February 2016 and that it was unpaid and that the charges were reasonable. He took into account the passage of time to excuse any inaccuracies Mr Capsis had remembering dates.[15]

    [15]Reasons for decision page 1 – 11, Line 7.

40. Particulars of the Capsis claim was set out in an affidavit attached to the initiating application. In her response, Ms Pointon makes no claim about the invoice being paid there. All she says is ‘I disagree with 6 on statement of claim. The invoice he has provided #22890 for $165 is false.’

41. The learned Adjudicator was entitled to conclude as he did on the evidence presented. There is nothing of substance in this ground of appeal.

    Ground 4

    That the Tribunal erred in allowing the claim by Capsis for the supply of “buzzers” but without giving reasons why the claim was allowed

42. Ms Pointon says she asked Capsis to supply only one ‘buzzer’ entry detection unit at the bottle shop, however Capsis billed her for two. Further she has never been able to locate either of them.

43. In his affidavit attached to his initiating claim document, Mr Capsis says Ms Pointon asked him to install curtain detectors across the entry to the bottle shop to activate two buzzers. His invoice #22999 for $627 billed for those items. At the hearing Mr Capsis confirmed Ms Pointon wanted ‘buzzers’ on the doorway to the bottle shop.[16]

    [16]Transcript 1 – 20, Line 43.

44. There was an email however from Ms Pointon dated 3 June 2016 addressed to Mrs Capsis in which Ms Pointon states :[17]

    I have just done an email search to find this invoice, as I had to check only recently with Mark whether this had been done. At the time of my enquiry, Mark gave me a verbal quote of around $300 and the invoice ends up double. There was only supposed to be one switch for a buzzer at the bottle shop. I note you have billed me for 2 switches. Please advise where these switches are, and why there are 2?

    [17]Attachment numbered 2 (X) to the Response.

1. As stated, the learned Adjudicator resolved matters of conflict in the evidence between Ms Pointon and Mr Capsis in favour of Mr Capsis. In addition here he had a signed statement of evidence of Mr James Goad in which he said he had been subcontracted by Capsis to do work at the Tavern and he installed a curtain detector across the entry to the bottle shop with 2 buzzers and 2 switches with one buzzer installed behind the bar and the other inside the fridge as requested by the manager.

2. The learned adjudicator was entitled to decide as he did on the basis he did. Ms Pointon has limited prospects of succeeding on this ground of appeal.

   Ground 5

   That the Tribunal erred in allowing the claim by Capsis for work done at the office of Ms Pointon’s brother which was not authorised by either Ms Pointon or Glasshouse Mountains Tavern but by other unauthorised representatives at the Glasshouse Mountains Tavern

3. The learned adjudicator did not allow the claim of the applicant for the attendance at the office of Ms Pointon’s brother. His reasons for decision on this claim were as follows:

   Invoice number 23057 dated 8 July 2016 in the total sum of $330 includes a claim for $150 plus GST for attending an office at Maroochydore on 4 July 2016.  Whilst I accept that Mr Capsis did attend such office on that date, I am satisfied that it was not at the request of Ms Pointin. There is insufficient evidence to establish on the balance of probabilities that this work was done in response to a request by a person authorised by or on behalf of Glasshouse Mountains Tavern Pty Ltd.  I would, therefore, not allow $165 of this invoice which relates to the Maroochydore attendance, although I will allow the remainder of such invoice in the sum of $165.[18]

   [18]Transcript 1 – 13, Line 1 – 8.

4. The balance of the invoice was for a site visit at the tavern. The final amount awarded to Capsis did not include the cost of attending Ms Pointon’s brother’s office.

5. Ms Pointon was successful in resisting this part of the claim at hearing and there is therefore no reason for any appeal against the learned Adjudicator’s decision.

   Ground 6

   That the Tribunal failed to accord procedural fairness to Ms Pointon during the conduct of the hearing by permitting Mr Capsis to make degrading remarks sotto voce throughout the conduct of the hearing;

6. I have considered the transcript of the hearing and there is no transcribed record of anything that might be taken to be degrading remarks noted, nor is there any note of something unintelligible being uttered as is sometimes the case with transcripts.

7. Ms Pointon was offered on more than one occasion an adjournment if she deemed it appropriate and she did not take up that offer. The learned Adjudicator gave the parties every consideration to ensure they had a fair hearing. It is clear the learned Adjudicator was at pains to ensure a fair hearing and if, as Ms Pointon suggests, derogatory remarks were being made she had every opportunity to raise it with the at the time of the hearing but chose not do so. There was no failure of procedural fairness here on the part of the learned Adjudicator.

8. There is no substance to this ground of appeal nor is there with any of the others.

9. Leave to appeal is refused.