Puddy v Hannah
[2012] QCATA 2
•4 January 2012
| CITATION: | Puddy v Hannah and Anor [2012] QCATA 2 |
| PARTIES: | Bruce James Puddy (Applicant/Appellant) |
| v | |
| PS & S Hannah t/as Cell One (Respondent) |
| APPLICATION NUMBER: | APL312-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 4 January 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal refused. |
| CATCHWORDS: | Minor Civil Dispute – where no error of law established – where applicant asks the Appeal Tribunal to come to a different view of the facts Queensland Civil and Administrative Tribunal Act2009, s 142(3) QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 |
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
On 15 August 2010 Mr Puddy and Cell One entered into a written contract for Cell One to provide a termite control system at Mr Puddy’s residence at 18 Hillcrest Road, Park Ridge. The agreement was signed by Mr Puddy and Mr Hannah on behalf of Cell One. Attached to the standard form agreement is a memorandum of understanding. Mr Puddy has initialled each clause of the memorandum of understanding. The agreement provided for a full monitoring system and the total cost of installation and monitoring was $2,101. A deposit of $601 was paid with the balance of $1,500 to be paid in six monthly instalments of $250.
The agreement also provided that Cell One had “accessed the yard” (sic) for the purposes of monitoring the system.
To facilitate payment, a direct debit was arranged with Mr Puddy’s bank account with Suncorp Bank. Mr Puddy became dissatisfied with the transaction and cancelled the direct debit. A total of $1,264 was owing to Cell One at the time Mr Puddy cancelled the direct debit.
Cell One then commenced a proceeding in the minor civil disputes jurisdiction of the Tribunal to recover the outstanding balance. The matter came on for hearing before a Tribunal Adjudicator on 11 April 2011. After hearing evidence from the parties, and reviewing the documents that were tendered the learned Adjudicator made an order that Mr Puddy pay to the applicant $1,132 instead of $1,264 in addition to the filing fee of $92 and a service fee of $76.20. The total of the order was $1,300.20. That sum was to be paid within 28 days.
From that decision, Mr Puddy has filed an application for leave to appeal or appeal. Leave to appeal is necessary as this is an appeal from a decision in the minor civil disputes jurisdiction.[1]
[1] QCAT Act, s 142(3).
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?[2] Is there a reasonable prospect that the applicant will obtain substantive relief?[3] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[4] 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?[5]
[2] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[3] Cachia v Grech [2009] NSWCA 232 at 2.
[4] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[5]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.
The grounds of appeal seem to contest that the learned Adjudicator made an error in his findings that Mr Hannah of Cell One returned to the property to monitor the system after Mr Puddy contends he terminated the contract on or about 20 August 2010. That is before he left to go to America. The payments in fact stopped on 16 August 2010. Mr Hannah gave evidence that he continued to visit the property with the last visit on or about 16 September 2010.
Mr Puddy also contends that Mr Hannah could not have returned to the property because the gate was locked, he did not have access and the gate was too high. Further, he gave no permission for Mr Hannah to go on to the property. He relies on a witness he produced to say that Mr Hannah did not return and also video surveillance.
Essentially, by the grounds of appeal, Mr Puddy is urging the Appeal Tribunal to make findings of fact contrary to those found by the learned Adjudicator. Because of Mr Hannah’s unreliable evidence about when he last returned to the property the learned Adjudicator reduced the claim by $132 which was the cost of the service call after the contract was terminated. This is implicit in the exchange between the learned Adjudicator and Mr Hannah.
[10] The relief sought by Mr Puddy in the appeal is that the order be overturned, the terminated baits be removed, and Mr Puddy be refunded all monies goes well beyond that which was in contention before the learned Adjudicator. It seems that Mr Puddy did terminate the contract because he was advised by a third party that the extent of the termite treatment undertaken by Cell One was unnecessary in the circumstances. He described it as “overkill”.[6]
[6] Transcript page 5.
[11] The difficulty that Mr Puddy has with his contentions on appeal is that although he challenges findings of fact by the learned Adjudicator he does not identify how the learned Adjudicator made an error in coming to the conclusion that he did on the information that was available to him. The findings made by him that Mr Hannah did return to the property to monitor the baiting system was open on the evidence particularly Mr Hannah’s evidence. It is implicit in the findings and the conclusions that there was an acceptance of Mr Hannah’s evidence. The learned Adjudicator was supported in coming to that conclusion by the fact that there was a written agreement entered into between the parties signed by Mr Puddy, initialled in numerous places by Mr Puddy which agreement clearly required Mr Hannah to monitor the system and authorised access to the property.
[12] In his submissions to the Appeal Tribunal, Mr Puddy simply reiterates the evidence he gave before the learned Adjudicator and has supported that evidence with fresh evidence from Debra Turner and a further statement from Julia Middleton, who gave evidence at the original hearing.
[13] In so far as it is fresh evidence, the general principle is that new evidence will not be allowed in an appeal when it could not, by reasonable diligence, have been obtained for the original hearing.[7] Even if the fresh evidence was accepted by the Appeal Tribunal, it adds little to what was put before the learned Adjudicator at the original hearing. This is not an opportunity for Mr Puddy to reagitate the original issues that were before the learned Adjudicator. It is necessary for him to establish some error of law, or an error in the finding of facts by establishing that those facts were simply not open on the evidence that was before him.
[7] Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435.
[14] I am not satisfied that Mr Puddy has been able to identify any such error. It is not enough that the Appeal Tribunal might come to the view that, had its members been sitting in the matter originally, they might have reached different conclusions. It must be shown that there has been a mistake in assessing the factual evidence or a failure to take some material evidence into account, before the Appeal Tribunal can intervene.[8]
[8] Lovell v Lovell (1950) 81 CLR 513.
[15] As Mr Puddy has not been able to identify any error in the fact finding process of the learned Adjudicator, nor any error of law and as none is apparent leave to appeal must be refused.
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