Qualitybuild Pty Ltd v Coro 1 Pty Ltd
[2014] QCATA 327
•26 November 2014
| CITATION: | Qualitybuild Pty Ltd v Coro 1 Pty Ltd and ors [2014] QCATA 327 |
| PARTIES: | Qualitybuild Pty Ltd (Applicant/Appellant) |
| v | |
| Coro 1 Pty Ltd, Coro 2 Pty Ltd, Coro 3 Pty Ltd and Coro 4 Pty Ltd t/as The Coronation Partnership (Respondents) |
| APPLICATION NUMBER: | APL126 -14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM |
| DELIVERED ON: | 26 November 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where claim for refund of overpayment – where respondent alleged different contract and different contracting party - tribunal analysed invoices - whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
The Coronation Partnership engaged Qualitybuild Pty Ltd to renovate a block of flats in Mooloolaba. Qualitybuild was to be paid $50 per hour including GST on receipt of weekly invoices. Coronation Partnership was to supply materials from known sources with the balance supplied by Qualitybuild from Bunnings on its corporate credit card. The partnership would, of course, refund Qualitybuild for those costs.
Qualitybuild did not have funds to pay its builders’ insurance and Workcover, so the partnership paid those amounts on its behalf. Further, during the course of the build, the partnership became suspicious of the amounts claimed by Qualitybuild. It analysed its accounts and formed the view that Qualitybuild had overcharged. The partnership filed a claim for $25,000, the maximum amount recoverable in a minor civil dispute claim. The tribunal ordered Qualitybuild pay the partnership $25,000 plus costs.
Qualitybuild wants to appeal that decision. Although there are 31 grounds of appeal listed, the central argument in each ground is that Qualitybuild disagrees with the learned Adjudicator’s findings of fact.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] 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]
[1]QCAT Act s 142(3)(a)(i).
[2]Pickering v McArthur [2005] QCA 294 at [3].
Qualitybuild submits that the invoices on which the learned Adjudicator based his findings were invoices submitted by the partnership, not Qualitybuild. In its application, Qualitybuild asked for an extension of four weeks so that it could provide ‘further evidence from Insurance’. Qualitybuild also submits that it gave all of its invoices to the partnership and that, while it could get receipts from Bunnings, it would be unreasonable to ask every other supplier for a copy of the receipt. Despite these comments, it seems that Qualitybuild has filed some fresh evidence with its application for leave to appeal.
The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Qualitybuild have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?[3]
[3]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.
An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party’s case at the initial hearing. Qualitybuild has not explained why this material was not available earlier. That evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Adjudicator.
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.
Qualitybuild denies that it was engaged to do the work. Rather its director, Mr Gray, submits that he was employed directly. The evidence does not support this submission. Qualitybuild issued invoices. The partnership paid Qualitybuild, not Mr Gray. The learned Adjudicator was entitled to find that the contract was between the partnership and Qualitybuild.
Once that fact is accepted, Mr Gray’s argument that he was not responsible for workers compensation and insurance, because he was on an hourly rate, must fail.
The learned Adjudicator conducted a comprehensive review of the evidence available for each of the claims by Coronation Partnership. He had the benefit of a summary by Wilson Teis, who provided a reconciliation of Qualitybuild’s bank statements, invoice books and invoices. The learned Adjudicator found[6] that Mr Gray had not properly accounted for the money paid to Qualitybuild. The evidence can support that finding and there is nothing in the transcript, or Qualitybuild’s submissions on appeal, that persuade me that the learned Adjudicator should have taken a different view of the facts.
[6]Reasons for decision at [27].
Therefore, the learned Adjudicator was entitled to find that Coronation Partnership established an entitlement to at least $25,000. There is no reasonably arguable case that the learned Adjudicator was in error. Leave to appeal should be refused.
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