Roache v Merzaie
[2023] QCATA 13
•21 February 2023
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Roache v Merzaie [2023] QCATA 13
PARTIES:
SEBASTIAN ROACHE
(applicant)
v
SAYED REZA MERZAIE
(respondent)
APPLICATION NO:
APL299-21
ORIGINATING APPLICATION NO/S:
MCDO1263-20MATTER TYPE:
Appeals
DELIVERED ON:
21 February 2023
HEARING DATE:
7 February 2023
HEARD AT:
Brisbane
DECISION OF:
Member Lumb
ORDERS:
1. Leave to appeal is refused.
CATCHWORDS:
APPEAL – GENERAL PRINCIPLES – leave to appeal – minor civil dispute – whether reasonable argument that decision was attended by error
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142
Berry v Treasure & Anor [2021] QCATA 61
Saxer v Hume [2022] QCATA 25
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
Self-represented
REASONS FOR DECISION
Introduction
By an Application for leave to appeal or appeal filed on 8 November 2021 (the Appeal Application), the Applicant (Mr Roache) seeks leave to appeal, and to appeal, a decision made by the Queensland Civil and Administrative Tribunal (the Tribunal) on 22 October 2021 (the Decision).
The Decision was made in a proceeding commenced by the Respondent to this application (Mr Merzaie) by an Application for minor civil dispute – minor debt filed on 20 October 2020 (the MCD Application). Mr Merzaie’s claim was for moneys owing to him for work performed as a tiler at an agreed hourly rate.
The hearing of the MCD Application proceeded on 22 October 2021.
By the Decision, the Tribunal (constituted by an Adjudicator) ordered that Mr Roache pay Mr Merzaie $9,207.00 (being the amount of the claim) and $125.40 for the filing fee, within 28 days.
The Reasons
The Adjudicator’s Reasons, as recorded in the Transcript of the hearing, relevantly stated:[1]
… Mr Merzaie conducted a business with his ABN number, did have tools that he used and had regularly worked as a tiler. He has produced a series of invoices detailing the extent of the work that he has carried out as an agreed hourly rate. That claim was inclusive of GST. The totality of the amount is $9207. Mr Roache contests that the work or at least some of the work was improperly carried out. But in his response to the claim, he merely says that those costs would be more than what the claim is worth.
Regrettably, I’m not able to accept his evidence on that basis, as – if there were complaints or costs of an amount equivalent or more than $9207, it would be expected that he would have records of complaints made to him or remedial costs incurred in attending to those repairs. Part of Mr Roache’s complaint, that there were unsigned timesheets, but Mr Roache also accepts that Mr Merzaie was meticulous in his recordings of hours worked. In the circumstances, I’m satisfied that Mr Merzaie has established that he did the work as a contractor and that there has been no satisfactory evidence of his non-entitlement to his invoices. Should it be the case that Mr Roache has that evidence, then he would be at liberty to bring that claim forward. However, on the matters that I have been asked to consider today, I consider that the applicant has established his claim …
[1]T1-6 lines 28-46.
The Grounds of Appeal
The Grounds of Appeal set out in the Appeal Application are stated as follows:
· THE RESPONDENT IN THIS CASE SHOULD HAVE BEEN ROACHE TILE P/L AND NOT SEBASTIAN ROACHE.
· SAYED REZA MERZAIEE WAS NOT AN EMPLOYEE OF SEBASTIAN ROACHE BUT SUBMITTED INVOICES/WORKSHEETS AS A CONTRACTOR TO ROACHE TILE P/L.
· ROACHE TILE CEASED TRADING ON 30/6/2021 AND WENT INTO LIQUIDATION ON 16/7/2021 AND WAS WOUND-UP ON 21/9/2021
· I WAS FORMERLY THE SOLE DIRECTOR OF ROACHE TILE P/L (IN LIQUIDATION).
Leave to appeal is required
An appeal against a decision by the Tribunal in a proceeding for a minor civil dispute may be made only if the party has obtained the Appeal Tribunal’s leave to appeal.[2]
[2]Subsection 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
As to the Tribunal’s approach to an application for such leave, I respectfully adopt the following observations of Judicial Member DJ McGill SC:[3]
… As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage. In deciding whether grounds for leave to appeal have been shown, it is relevant to consider that the proceeding was a minor civil dispute, and the obligation on the Tribunal was to make orders it considered to be fair and equitable to the parties to the proceeding in order to resolve the dispute: the QCAT Act s 13(1). The Tribunal was also required to comply with the QCAT Act s 28 and s 29.
(citation omitted)
[3]See Saxer v Hume [2022] QCATA 25, [2].
Further, as was said by Justice Daubney, President, in Berry v Treasure & Anor:[4]
There is no automatic right of appeal against minor civil dispute decisions. I respectfully adopt and endorse the following observations by the former President, Justice Alan Wilson, in Durrand v Karaolis:
The Queensland Parliament has made it clear, in the QCAT Act, that so far as possible minor civil disputes of this kind are to be resolved by a simple procedure which is speedy, inexpensive and final. That conclusion is reinforced by the fact that before a party can appeal a decision in this jurisdiction it must obtain leave from the Appeal Tribunal … In other words, there is not an automatic right to appeal these decisions; rather, an applicant must first establish that it has a right to a grant of leave.
(citation omitted)
[4][2021] QCATA 61, [14].
Should leave to appeal be granted?
The sole ground of appeal is that, in substance, Mr Roach was not personally liable to Mr Merzaie.
The reasons below record that Mr Roache’s case was that there were issues with Mr Merzaie’s work and this cost Mr Roache more than the claim was worth. The Adjudicator rejected that contention on the ground of an absence of evidence. That finding is not challenged on appeal.
As to the ground of appeal, the Appeal Application attached a tax invoice dated 26 July 2020 said to be issued by Mr Merzaie. It is directed to ‘Roache Tile’ and refers to doing tiling with ‘Roache Tile’. Mr Roache informed the Appeal Tribunal that the invoice did not form part of the material before the Adjudicator. There was no application for leave to adduce further evidence (or an explanation as to why the material was not put before the Adjudicator). Regardless, I consider that a critical difficulty with Mr Roache’s case is that he did not point to (or seek to adduce) any evidence that the agreement by which Mr Merzaie came to do the work the subject of the claim, was in terms that did not render Mr Roache liable for the amount claimed. In my view, Mr Roache needed to establish that the agreement was between Mr Merzaie and the company, Roache Tile Pty Ltd, and that Mr Roache had no personal liability to Mr Merzaie. Even accepting the invoice on its face, I consider that it would not, of itself, establish the defence sought to be run by Mr Roache. While the content of the invoice is capable of being corroborative of an anterior agreement if otherwise established, I consider that, without more, it does not provide proof that the agreement was with the company (and that Mr Roache was not personally liable for the amount claimed).
I consider that Mr Roache has not established that there is a reasonable argument that the Decision was attended by error and that an appeal is necessary to correct a substantial injustice caused by that error or that the Appeal Application raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage.
For the reasons set out above, leave to appeal is refused and I order accordingly.
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