Roberts v Arbest Pty Ltd - [2013] QCATA 258

CITATION:

Roberts v Arbest Pty Ltd [2013] QCATA 258

PARTIES:	Mrs Christine Louise Roberts (Applicant/Appellant)
v
Arbest Pty Ltd (aka Artbest Pty Limited) (Respondent)

APPLICATION NUMBER:

APL085

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Ms P Stilgoe OAM, Senior Member
Mr T W Cowen, Member

DELIVERED ON:

26 September 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Application for Leave to Appeal is dismissed.

CATCHWORDS:

BUILDING DISPUTE - contract interpretation - oral contract - vague terms - professional witness not an expert - error of facts only.

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 (QCAT Act).

REASONS FOR DECISION

This Appeal is an Application against a building dispute where the original hearing was determined in Arbest’s favour. This Appeal Tribunal cannot find an error of fact or law in the original Tribunal decision that would constitute a substantial injustice to Ms Roberts caused by a substantial error in the original decision.
The stated grounds for the appeal are that the Tribunal erred in fact and in law in deciding:
a)    the terms of the agreement and the parties to it were vague and in dispute;
b)    the work Arbest carried out was of sufficient satisfactory standard; and
c)    in finding that Arbest was not responsible for the flooding issues at the property in circumstances where all of the evidence before the Tribunal was that the Arbest was retained to address a flooding issue at the property for which it was paid but failed to adequately perform causing Ms Roberts’ loss.
Ms Roberts’ submissions did not address an error of law. They only address what the Appeals Tribunal considers to be errors of fact.
Ms Roberts’ submissions are based on two essential points:
a) Arbest was engaged to fix a flooding or ingress of water into her downstairs lounge room. This room still had water coming into it after Arbest completed the job. Therefore, Arbest failed to do what it promised and was engaged to do.
The implication is that the mere fact of the water continuing to seep raises the inference that Arbest had not done the job it was paid to do. This is a question of contractual interpretation.
b) The Tribunal accepted the evidence of Arbest’s witnesses rather than the evidence of the professional engineer she engaged. In other words, the Tribunal did not give appropriate weight to her professional witness and gave inappropriate weight to Arbest’s witness.
In relation to the first point, Ms Roberts submits that the Tribunal erred in not agreeing with her version of the contract that came into existence. The contract was an oral contract. Ms Roberts submitted that the oral agreement was reached where Arbest would carry out work at the property with a view to immediate remediation of a pre-existing water ingress issue. This Appeal Tribunal accepts that the contract involved putting drainage into Ms Roberts’ property, the purpose of which was to attempt to remediate the water seepage issues.
However, the Tribunal did not make a finding that the contract contained specific terms to the effect that the water ingress into the lounge room would cease completely by the installation of the proposed sub surface drains. Nor can this Appeal Tribunal find that this promise was ever made. This Appeal Tribunal agrees with the finding of the original Tribunal, and the transcript supports the finding[1], that the terms of the contract were vague. Although Ms Roberts may well have wanted to resolve the ingress of water problem there is insufficient evidence provided to show that such a guarantee was included in the terms of the contract, nor can it be inferred that it was a fundamental term of the contract. The contract is best described as one where sub-surface drains would be constructed that would go towards alleviating the water seepage issue. There was no evidence provided to show that the drains were not doing what subsoil drains of that type are meant to do, which is to divert surface and underground water away from the house slab.
[1]For example at page 10 line 15 Ms Roberts says “We had a bit of a chat. He mentioned you know $7,000 a couple of blokes a couple of days” and the following lines. The only conclusion that can be drawn from this evidence is that the oral contract terms were vague.
Ms Roberts was aware that sub-surface drains were needed prior to engaging Arbest. Who advised Ms Roberts was not adduced. Arbest was not given any plans or specifications to work from that were specifically designed to alleviate the water ingress issue. The evidence suggests that Arbest (or its sub-contractor) did what is usually done to install subsurface drains when contracted to do so.
In relation to the second point on the probity of the evidence of the geotechnical engineer, Mr Edem Birdie, Ms Roberts submits that the Tribunal erred in not accepting his evidence above that of other witnesses, and specifically Mr Mordey. However, there were a number of problems with Mr Birdie's evidence. Firstly, Mr Birdie was not qualified by the Tribunal as an expert. No evidence was led at the original hearing as to his expertise. Secondly, Mr Birdie's report contained pejorative language (“a juvenile attempt”). This undermines the scientific nature of his report, if such a scientific nature was present. Thirdly, Mr Birdie made assertions that his assessment came from looking at the site. We take this to mean he looked at the surface of the site but he took no relevant measurements. He did not excavate the drainage ditch constructed by Arbest to ascertain how deep it was in relation to the building floor levels, or whether it contained a suitable material type or size aggie pipe in relation to the quantum of flow. Mr Mordey’s evidence was not categorised as “expert”. He simply gave evidence as to what he did in constructing the drains. His evidence also canvassed the idea that there must be another way or route that the water was penetrating the building.
Mr Birdie’s report also stated, as asserted in Ms Roberts’ submission, that the “drains at the property must be redesigned and constructed in such a manner so that water ingress could be immediately stopped”. Ms Roberts subsequently engaged a “builder” to fix the water ingress issue. She provided no evidence that this second contractor had a redesigned plan of drainage from which to work. Indeed, she provided no evidence or submission as to just what the second contractor specifically did.
Mr Birdie also gave evidence that there would need to be an internal drain in the building to be effective. We took this to refer to a drain under the floor to drain away any water that would collect under the concrete slab floor of the building. Neither Ms Roberts nor Arbest submitted that such a drain was ever contemplated in the oral contract between the parties.
While Ms Roberts made the assertion, in her submissions that she retained the services of another builder-contractor to remedy the water ingress, she provided no indication or evidence of exactly what this other contractor actually did. She made no submissions on the scope and nature of the works of the other contractor other than to submit that after he completed his work the water stopped seeping into the downstairs lounge room of the house. The Tribunal was not made aware of whether the second contractor added to Arbest’s original work, removed the Arbest work altogether and replaced it completely or whether the second contractor’s work was physically unrelated to Arbest’s previous work. Therefore, it is extremely difficult for this Appeal Tribunal to draw a conclusion that Arbest’s work, as the submission Ms Roberts suggests, was completely inadequate.
Ms Roberts gave evidence at the initial hearing that the volume of water seeping into the downstairs lounge room was of the same quantity as was seeping in before Arbest carried out the drainage work. However no evidence was actually provided as to what this volume was after the drains were installed, nor was there evidence to show what the quantum was before the drainage work was put in place and nor was there evidence provided to show the quantum of water which was actually coming out of the drain. No evidence was provided of any measurements being taken. Ms Roberts did not contradict the fact that water was coming out of the drain and the drainage pits were working to some observable extent. Nor did she address that point in this Appeal.
Any claim in relation to hydrological sub-surface flows would need to be substantiated by expert evidence based on hydrological subsurface surveys, not on looking at the above ground situation. Characterization of preferential flow at multiple spatial and temporal scales is fundamental to the understanding of complex subsurface flows and catchment hydrology. Surveys of subsurface preferential flow and the conditions under which it occurs would need to be conducted to determine and to provide evidence for, the reason why the drainage work that Arbest carried out did not resolve the issue. Indeed no scientific evidence was provided to demonstrate that Arbest’s works did not contribute towards the resolution of the problem. It may be that Mr Birdie’s experience could lead him to draw certain conclusions about the sub-surface flows from his surface observations but those conclusions would need to be tested and checked and supported by ground truthing. This was not done.
Ms Roberts also submits (at paragraph 22 of the Appeal submissions) that at no stage did she assert that Arbest is responsible for flooding at the property. That is simply not the case. In the original application, under: “Reasons I consider the Orders Should be made”, filed on 9 December 2011 at Part C, paragraph 2 on page 7 Ms Roberts stated: “As a consequence of the drainage works undertaken the property now regularly floods and suffers seepage.”
Therefore, it was not only within the Tribunal Member’s purview but incumbent on the Member to make a finding of fact about whether Arbest’s drainage works were responsible for flooding and or seepage. The fact that Ms Roberts gave evidence at the original hearing that contradicted this statement in her original Application would have assisted the Member in coming to this conclusion.
Ms Roberts must first establish a right of appeal. That right is ordinarily sustained when there is a question of importance that raises an issue of public interest, or there is a reasonably arguable case of error in the original decision and a reasonable prospect that Ms Roberts would obtain substantial relief. That is leave to seek an Appeal is necessary to correct a substantial injustice to Ms Roberts caused by a substantial error in the original decision.
In our view, the Member hearing the original case arrived at the correct decision by drawing the conclusions reasonably open to him on the balance of probabilities. Ms Roberts’ assertions that dispute the findings of fact by the learned Member are unsustainable as the examination above demonstrates. Since there are no errors of law asserted by Ms Roberts this question does not have to be addressed.
We find that Ms Roberts has not demonstrated a case for a right of Leave to Appeal.
The Application for Leave to Appeal is dismissed.
If the Application for Leave to Appeal were allowed the Appeal would be dismissed for the reasons provided above.