Rigel Erectors Pty Ltd v Harmon
[2013] QCATA 234
•9 August 2013
| CITATION: | Rigel Erectors Pty Ltd v Harmon [2013] QCATA 234 |
| PARTIES: | Rigel Erectors Pty Ltd (Appellant) |
| V | |
| Dr Adam Harmon (Respondent) |
| APPLICATION NUMBER: | APL218 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe OAM, Senior Member |
| DELIVERED ON: | 9 August 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused |
| CATCHWORDS: | MINOR CIVIL DISPUTE – whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549; Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
APPEARANCES and REPRESENTATION (if any):
The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Rigel Erectors Pty Ltd built a Titan garage for Dr Harmon at his Spring Hill property. Rigel built the garage too close to the boundary. That error meant that Dr Harmon needed a development application from the Brisbane City Council. He claimed the cost of the application from Rigel. Rigel claimed payment of its outstanding invoice. The tribunal found that, but for Rigel’s error, there was a chance Dr Harmon may never have needed a development application. The learned Adjudicator assessed that chance as a percentage and applied it to Dr Harmon’s claim. He then deducted Rigel’s outstanding invoice and ordered Rigel pay Dr Harmon $2,968 plus costs.
Rigel wants to appeal that decision. It says Dr Harmon acknowledged that he was fully responsible for complying with Council requirements and would “totally exonerate” Titan Enterprises from any “reprisals” from Council. Rigel also relies on excerpts from the Petrie Terrace and Spring Hill Local Plan which, it says, shows that Dr Harmon always needed Council approval for the garage.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. 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?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?[4]
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at 2.
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]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 appeals tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[5] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[6] As the High Court said in Fox v Percy:
In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.[7]
[5]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[6] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[7] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
The learned Adjudicator acknowledged that the garage needed development approval in any event.[8] The learned Adjudicator found, however, that if Rigel had placed the garage correctly, there was only a 35% chance that Dr Harmon would have been forced to obtain that approval. I understand the learned Adjudicator‘s reasoning and there was nothing in the evidence to suggest that his reasoning was flawed. His decision is not contrary to the compelling inferences in the case. Rigel has given me no convincing reason to set aside the learned Adjudicator’s decision.
[8] Transcript page 1-23 at 8-10.
I also note that Rigel places great emphasis on a “waiver” of responsibility. The agreement was between Dr Harmon and Titan Enterprises. Rigel was not a party to that document. It has not explained why it is entitled to rely on a document to which it is not a party.
The matters Rigel raises were the subject of submissions before the learned Adjudicator. Rigel has not raised any new issues and it has not demonstrated that the learned Adjudicator was in error.
There is no question of general importance that should be determined by the appeals tribunal. There is no reasonably arguable case that the learned Adjudicator 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.
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