Prestige Pools Paving and Landscapes Pty Ltd v Cain
[2014] QCATA 159
•1 July 2014
| CITATION: | Prestige Pools Paving and Landscapes Pty Ltd v Cain [2014] QCATA 159 |
| PARTIES: | Prestige Pools Paving and Landscapes Pty Ltd (Applicant/Appellant) |
| v | |
| David Cain Carol Cain (Respondents) |
| APPLICATION NUMBER: | APL492-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 29 April 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM Member Rogers |
| DELIVERED ON: | 1 July 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for leave to appeal is refused. |
| CATCHWORDS: | APPEAL – BUILDING DISPUTE – cost plus contract for pool renovation and landscaping – leaking pool – decision in favour of respondents – whether decision contrary to the evidence – whether appellant denied procedural fairness Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3(b) |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Prestige Pools Paving and Landscapes Pty Ltd appeared by its Director, Mr Murry Wilson, |
| RESPONDENT: | Mr and Mrs Cain were self-represented |
REASONS FOR DECISION
This is an application for leave to appeal the Tribunal’s decision in a domestic building dispute between Prestige Pools Paving and Landscapes Pty Ltd, the builder, and Mr and Mrs Cain, the home owners.
Background
On 13 February 2010, the parties entered a written contract for Prestige Pools to perform building services for Mr and Mrs Cain. The contract did not specify what the services would be and it was described by Mr Wilson, a director of Prestige Pools, as a cost plus contract.
The original work involved the replacement of a wooden deck. This change made other changes desirable and further work to the pool was performed by Prestige Pools. As a result of this further work, a leak developed in the pool. The parties could not agree on the best way to fix the leak and the Building Services Authority became involved and a Direction to Rectify No. 36340 issued on 14 June 2011. The Authority confirmed to the parties on 12 August 2011 that this direction had been complied with and no further action was required.
Mr and Mrs Cain advised the Authority on 28 September 2011 that the pool was leaking again. In early October 2011, Prestige Pools filed an application with the Tribunal seeking Orders that it was not liable to perform further rectification work and for payment of monies outstanding together with interest.
When advised of this application, the Authority declined to investigate further.[1] Accordingly, at the time of this application and hearing there was no involvement by the Authority.
[1]Queensland Building and Construction Commission Act 1991 s 83.
Grounds of Appeal
Prestige Pools filed this application, for leave to appeal the decision dated 14 October 2013, on 11 November 2013. It was supported by a three page summary of points of dissatisfaction with the decision but did not identify the grounds upon which the appeal was based.
At the hearing Mr Wilson identified the grounds to be as follows:
a) Prestige Pools was not permitted at the hearing to talk about the actions of the Building Services Authority;
b) Prestige Pools was not permitted to use recordings made of conversations;
c) Prestige Pools was not allowed to question Mr and Mrs Cain as it wanted to;
d) The Member didn’t understand or ignored the evidence.
The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as His Honour then was) in Pickering v McArthur[2]:
There are numerous authorities, in varying language but with unvarying emphasis, that leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.
[2][2005] QCA 294 at [3].
It may also be relevant in a particular case to consider the gravity of the case, the amount in dispute, any public interest in the result of the particular case, or whether any question of law raised is one of wider importance than between the parties to the immediate dispute[3].
[3]Poiner v Quirk [2007] QDC 299. See also Willan v Gordon [2013] QCATA 305.
Applicant’s Submissions
The submissions of Prestige Pools supporting this application revisited the evidence that had been presented at the hearing and stated that the testimony and evidence appeared to have been ignored. Mr Wilson complained that the learned Member allowed the Cains to obtain quotes from their competitors. He indicated that he struggled to understand any of the rulings and statements of the learned member.
Written submissions dated 24 April 2014 again explored in detail the evidence given at the hearing which was not accepted by the learned member. Prestige Pools allege it has been subjected to a deceptive plan to pervert the course of justice. It asks for the case to be properly investigated.
The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[4] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[5]
[4]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[5]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
The learned member at paragraph 34 of his decision accepted the evidence of Mr and Mrs Cain that they relied on Prestige Pools to do the job properly. Prestige Pools argues their evidence was based on perjury because they denied the existence of an ‘earlier arrangement’ that Prestige Pools would merely ‘do their best’ and this arrangement had the effect of ensuring Prestige Pools had no responsibility for further rectification work.
The learned member was in the best position to form a view of the credit of the witnesses.
The decision of the learned member was based on a finding of fact, at paragraph 29, that there was nothing in writing in the form of a waiver signed by Mr and Mrs Cain excusing Prestige Pools from liability if the pool did leak. This finding was not challenged by Prestige Pools, indeed on numerous occasions in submissions to the Building Services Authority, to the tribunal and to this appeal tribunal Mr Wilson indicated it was unreasonable to expect a contractor to obtain a written waiver when it was owed money.
Once this finding was made, it was clear Prestige Pools could not rely on ‘an arrangement’ because the situation is governed by the Queensland Building Services Authority Act 1991 (Qld):
59.(1) Any variation to a contract for carrying out major domestic building work must be in writing and signed by the parties to the contract.
(2) A variation that does not comply with this section may be relied on by the consumer but not by the building contractor.
The argument by Prestige Pools, that the learned member did not understand, or ignored the evidence, cannot be substantiated.
The hearing was conducted over two days. It is clear from the transcript Prestige Pools was given every opportunity to cross examine Mr and Mrs Cain and Mr Noble from the Building Services Authority in detail. Through its representative, Mr Wilson, it was able to challenge the details of their evidence.
From the material filed and the decision of the learned member it is clear:
a) The original Building Services Authority Notice to Rectify 36340 had been complied with.
b) Prestige Pools did not seek a review of the original decision, but complied with it.
c) At the time of the hearing of the application the Building Services Authority was no longer involved. Its evidence about rectification into the future and the unpaid invoices would be speculative and would not assist the tribunal to decide the application before it.
The Tribunal is under an obligation to deal with matters in a way that is accessible, fair, just, economical, informal and quick[6]. This may require a member on occasions to limit the time available for cross-examination or otherwise manage the resources of the Tribunal. The arguments of Prestige Pools that it was not allowed to talk about the actions of the Building Services Authority or question Mr and Mrs Cain as it wanted to, are merely examples of the learned member conducting the hearing in accordance with his obligations and are not sufficient reasons to grant the appeal.
[6]QCAT Act s 3(b).
Prestige Pools is aggrieved by the ruling of the learned member to not allow the recording of conversations made by Mr Wilson to be admitted into evidence. It has not argued why the ruling was wrong. In the absence of argument which identifies the error of the learned member we are not satisfied there is a reasonable argument that the decision is attended by error. It is the responsibility of Prestige Pools, not the appeal tribunal to identify the errors of law or fact relied on to support its application.
Prestige Pools has asked for the case to be properly investigated. That is not the purpose of this hearing. An application for leave to appeal must demonstrate an error on the part of the learned member who heard the original application.
After carefully examining the evidence and the Tribunal’s reasons for its decision we have not been able to establish any basis upon which to give leave to appeal. The evidence supports the learned Member’s decision and we can find no compelling reason to come to a different view.
There is no question of general importance that should be determined by the appeals tribunal. There is no reasonably arguable case that the learned member 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.
The application is refused.
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