Pole v Jbe Communications
[2011] QCATA 43
•1 March 2011
| CITATION: | Pole v JBE Communications [2011] QCATA 43 |
| PARTIES: | Mr Kevin Pole & Ms Geanenne Pole (Applicants/Appellants) |
| v | |
| Mr Brent Evans trading as JBE Communications (Respondent) |
| APPLICATION NUMBER: | APL211-10 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 1 March 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal granted. 2. Appeal dismissed. |
| CATCHWORDS: | Minor Civil Dispute – where decision entered by default – where application to set aside – no opportunity for the applicant to file submissions – where process error by the Tribunal – where denial of natural justice – leave to appeal granted – where the Appeal Tribunal in position to consider the application to reopen or set aside the default decision – where no defence on the merits Queensland Civil and Administrative Tribunal Act 2009, ss 142(3), 146 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Mr and Mrs Pole were the owners of land at 15 Rival Lane, Coomera Waters. During 2008 they constructed a house on the land using a registered builder, Mr Brent Ward of Brent Ward Homes.
During the course of construction, Mr Ward, as part of the building contract, engaged Mr Evans to supply and install a CATV system which comprised of an alarm system, television points and data points.
Whilst that work was being done, Mr Evans says he was asked by the Poles to undertake further work which included more data points, video injection points, media cables, EGI intercom with door station and a code pad for the gate.[1] The cost of that extra work was $9,075 less a payment described as a progress payment, of $1,000 leaving an outstanding balance of $8,075.
[1] Invoice dated 5 January 2009 from Mr Evans to the Poles.
On receiving the account, the Poles’ solicitor, Mr McCartney wrote to Mr Evans’s solicitors challenging their obligation to pay on the basis that there was no contractual relationship between the Poles and Mr Evans. They contend that the work undertaken by Mr Evans was contracted by the builder and it is the builder’s responsibility to pay Mr Evans for that work. They also contend that no quotation was provided for the additional works; implying of course, that they accept that the additional works were done. They go on to state in the letter:
“Since the date of such discussions, our client has not at any stage received any quotation nor signed any agreement directly with your client in relation to the installation or supply of goods or materials at our client’s property;
Your client has previously attended at our client’s property demanding payment, at which time he agreed with our clients that he had failed to provide any quotation for work and had in fact carried out work without our client’s approval, knowledge or consent.”
The letter does not contend, nor is it contended elsewhere, firstly: that Mr Evans did not do the work the subject of his invoice; secondly, that the work is defective; thirdly, the cost is not a reasonable cost for the work undertaken; and fourthly, they paid the builder for this work. The only issue, is whether or not there was a contract between the Poles and Mr Evans or whether in truth the contract was with Mr Evans and the building contractor, Mr Ward.
Mr Ward’s signed statement, filed in both the reopening application and the appeal, makes it clear that the work he contracted Mr Evans to do was limited to that referred to above, and any extra work was requested by the Poles directly. In his signed statement he said:
“Mr and Mrs Pole requested additional work to be carried out by JBE Communications. This additional work was a private arrangement between Mr and Mrs Pole and JBE Communications.
It was clear from my site inspections that additional work had been carried out by JBE on behalf of Mr and Mrs Pole and that there was a clear direct working relationship between JBE Communications and Mr and Mrs Pole.
Mr and Mrs Pole were issued an invoice by JBE Communications on 9 December 2008 in my presence. They made several changes deleting some items and then requested the additional work was to go ahead.[2]”
[2]A letter from Brett Ward Homes 15 August 2009 annexure 1 to the respondent’s submissions in the appeal.
Against that history, the Poles refused to pay the outstanding account and as a consequence, Mr Evans commenced a minor civil dispute proceeding in the Tribunal on 31 March 2010 claiming the amount of $8,075.
The Poles did not file a response to the application. As a consequence, Mr Evans applied for a default decision, and on 28 June 2010 the Tribunal ordered that the Poles pay to the applicant the sum of $8,165, which included a filing fee.
The Poles then sought to have the application reopened[3]. In support of the application to reopen, the Poles contended that:
“On 13 April 2010 we were served with the application by Mr Evans. At the time of effecting service, we asked Mr Evans what the documents were about to which he replied that he wanted to take us to mediation. Mr Evans further stated that we needed to take no action given it would be set down for a mediation and we would be told of the date in due course. The application did not surprise us given Mr Evans had previously engaged lawyers in August 2009 in an attempt to make claim against us for work at our property despite us having no relationship with Mr Evans. All works completed at our property by Mr Evans were as subcontracted to one of our building contractors. At no stage have we had any direct relationship with Mr Evans. As was expressed to Mr Evans through our lawyer on 26 August 2009 (copy attached), we strenuously deny having any debt to Mr Evans and would have without a doubt entered a response to the application in this case had Mr Evans not expressly mislead us by stating that we did not need to do anything until our mediation date was set.”
[3] QCAT Act, s 138.
On 24 August 2010 the application was considered by a Tribunal Adjudicator and despite this statement, the Tribunal refused to reopen the application.
The Poles then filed an application for leave to appeal or appeal in the Tribunal on 15 September 2010. As this is an appeal from a decision in a minor civil dispute leave of the Appeals Tribunal is necessary.[4] For the reasons following leave will be granted.
[4] QCAT Act, s 142(3).
Prior to the decision being made on the application to reopen, there was some confusion in the Tribunal registry as to how the application was to progress. The solicitors for the Poles complain, rightly, that they were not given an opportunity to make submissions in respect of the application.
The application was filed on 20 July 2010. After filing the application, the solicitor for the Poles contacted the Tribunal on 26 July 2010 to ensure that the application had been received and were advised that there would be a directions hearing allocated within a short time. On receipt of a sealed copy of the application, without any notice of directions, the Poles’ solicitors again contacted the Tribunal to find out if the application had been allocated a directions hearing date. To this inquiry, they were told that the Tribunal was waiting for Mr Evans to respond.
On 3 August 2010 the Poles’ solicitors again contacted the Tribunal and were told that the matter would be set down for a directions hearing on 16 September 2010. In anticipation of that hearing, the Poles’ solicitors filed an application for leave to represent the Poles as required[5]. Naturally, they expected that at the directions hearing directions would be made about filing submissions in respect of the application to reopen.
[5] QCAT Act, s 43.
Consistent with that expectation, a Notice of Directions Hearing, dated 3 August 2010, was forwarded to the parties notifying them that a directions hearing was listed for 11:30am on 16 September 2010. For completeness, I should also say that an application to stay the decision of the Tribunal was also made but this was refused on 29 July 2010. On 2 September 2010 the parties were notified that the directions hearing listed for 16 September 2010 was a clerical error and would not be proceeding.
Unfortunately, by that time, in fact on 24 August 2010, the Tribunal had considered the application to reopen and ordered that it be dismissed. In respect of that application, the Poles were not given an opportunity to be heard and were denied natural justice. For the purposes of the appeal I accept that the Poles’ solicitors reasonably expected to have an opportunity to file submissions so that their clients’ position could be properly considered by the Tribunal. This did not happen.
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?[6] Is there a reasonable prospect that the applicant will obtain substantive relief?[7] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[8] 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?[9]
[6] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[7] Cachia v Grech [2009] NSWCA 232 at [13].
[8] QUYD Pty Ltd v Marvass Pty Ltd (supra).
[9] 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.
Here, leave to appeal is necessary to avoid a substantial injustice which was caused by an error in the Tribunal processes.[10] The consequences of this error resulted in a denial of natural justice to the Poles, which is, on any view an error of law warranting the granting of leave to appeal.
[10] Edwards v Laraby Pty Ltd (2010) QCAT 030.
In deciding an appeal on a question of law only, the Appeal Tribunal may confirm or amend the decision, or set it aside and substitute its own, or set it aside and return it to the Tribunal for reconsideration[11].
[11] QCAT Act, s 146.
The question then is should the application to reopen be referred back to the Tribunal or should the Appeal Tribunal substitute its own decision? It seems to me, on reading all of the material filed that the Appeal Tribunal is in as good a position as the Tribunal to make a determination on the application to reopen. The Poles’ solicitors have filed extensive material in support of the application both to reopen and on this appeal.
The grounds for reopening an application are set out in section 137 of the Queensland Civil an Administrative Tribunal Act 2009 (“the Act”). It provides:
(a) the party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing; or
(b) the party would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided.
It seems obvious that based on the grounds set out in the application to reopen, set out above, that the Poles do not fall within the provisions of section 137. Even if it could be said that they had an excuse for not filing a response as opposed to attending a hearing, the excuse is not reasonable because the originating application makes it plain that a respondent is required to file a response or else risk the Tribunal making a decision by default. The application to reopen should be dismissed on this basis.
If however, it is in truth an application to set aside a default decision different principles apply. These principles are well known[12]. They are:
[12]Aboyne Pty Ltd v Dixon Homes Pty Ltd (1980) Qd R 142; National Mutual Life Association of Australia v Oasis Development Pty Ltd (1983) 2 Qd R 441 at 449.
(a) Whether or not the applicant has given a satisfactory explanation for the failure to file the response.
(b) Whether or not there has been any delay in making the application.
(c) Whether or not the defendant has a prima facie defence on the merits to the claim.
Accepting that the Poles genuinely believed that the matter would go to mediation first, before there was a requirement to file a response, the first criteria is satisfied. Also there was no unreasonable delay in making the application to set aside the default judgment.
The third criterion is the most cogent[13] and here is the most troublesome. There is a statement filed by the builder, referred to above which categorically sets out what was included in the building contract and what he engaged Mr Evans to do as part of that contract. The work undertaken by Mr Evans as particularised in his invoice is well beyond that which he was contracted to do by Mr Ward. It is not contested that the Poles told Mr Evans what they wanted done and that he carried out the work in accordance with that request. They were obviously aware that Mr Evans was carrying out the work despite the lack of quotation, or a formal fixed price agreement. The Poles have the benefit of the work done and the equipment installed.
[13]National Mutual Life Association of Australia v Oasis Development Pty Ltd (1983) 2 Qd R 441 at 449.
The Poles also do not contend that the extra work requested by them was included in the building contract with Mr Ward. The Poles do not contend that the work undertaken by Mr Evans is either defective or not in accordance with their instructions.
The Poles say:
“We are now in possession of material which substantiates that the Application for Minor Civil Dispute was originally filed against us by the application despite no debt being owed and no relationship existing between us and the Applicant. Such material is in the form of invoices establishing the relationship between us, our building contractor and Mr Evans as the builder’s sub-contractor. We had no relationship with the Applicant at any time.”
Unfortunately, the submission does not address the statement of Mr Ward, particularly the last paragraph where he says the Poles instructed Mr Evans to proceed with the further work, in his presence. Also of note is the fact that they have been in possession of Mr Ward’s statement since July 2010 when the application to set aside the decision by default was made.
It seems to me, that when one has regard to these known facts it is difficult to discern that the Poles do have a prima facie defence on the merits. They simply allege there was no quotation and therefore no contract. Having instructed Mr Evans to do the work, for which they received a benefit, it is reasonably inferred that they would pay a reasonable price for the installation. There is no allegation in the Poles’ material that the cost charged by Mr Evans was not reasonable. There is nothing in the letter to Mr Evans from the Poles’ solicitor, referred to above, or in the submissions which would, in my view, give rise to an arguable defence on the merits.
As no defence on the merits has been made out in any of the applicants’ material, I propose to give leave to appeal, refuse to reopen or set aside the decision by default and therefore dismiss the appeal.
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