Saye v Stam
[2014] QCATA 247
•26 August 2014
| CITATION: | Saye v Stam [2014] QCATA 247 |
| PARTIES: | Shannon John Saye (Applicant/Appellant) |
| v | |
| Marco Hendrikus Stam (Respondent) |
| APPLICATION NUMBER: | APL499 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Thomas, President |
| DELIVERED ON: | 26 August 2014 |
| DELIVERED AT: | Brisbane |
| ORDER MADE: | The application for leave to appeal is refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where applicant commissioned a pre-purchase inspection – where tribunal asked to consider whether inspection report identified all defects – where report from master builder who had previously conducted mediation – whether tribunal should have accepted report from master builder – where report writer not available for cross examination – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 142(3)(a)(i) Pickering v McArthur [2005] QCA 294, applied |
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
Mr Saye bought a house at Campwin Beach. The original house was over 100 years old, but it had been moved to Campwin Beach, restumped and renovated, about 25 years ago. Before Mr Saye bought the house, he engaged Absolute Building and Pest Services Pty Ltd to do a pre-purchase inspection.
Mr Stam, on behalf of Absolute, did the inspection and produced a report. Mr Saye claimed that the report did not cover all the damage in the house. He filed a claim against Mr Stam for the cost of repairing the unidentified damage. A Magistrate, sitting as a member of the tribunal, correctly identified the proper respondent as Absolute. He then dismissed Mr Saye’s claim.
Mr Saye wants to appeal the learned Magistrate’s decision. He says the learned Magistrate allowed a report from Malcolm Hull into evidence when Mr Hull had earlier been appointed to mediate the dispute. He says that
-the learned Magistrate erred in finding that Mr Stam’s comment, about dry wood termite damage in the floor boards and joists, encompassed similar damage in the bearers.
-the learned Magistrate erred in not accepting the unchallenged conclusions in Mr Cornell’s report because Mr Cornell was not available for cross-examination.
-the learned Magistrate erred in finding that a different standard of care should be expected from a person preparing a pre-purchase inspection report.
-the learned Magistrate erred in not making any finding about his claim for repainting.
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][2005] QCA 294 at [3].
Mr Hull is a regional manager for the Master Builders Association. The Association’s website[3] makes it clear that its mediators are subject to the Practice Standards of the National Mediator Accreditation System. Those standards require mediators to be impartial and to respect the confidentiality of the parties. Mr Hull may have compromised both of these obligations by producing a report for only one of the parties. He should not have produced a report for Mr Staye.
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The learned Magistrate accepted the report but noted that it was a matter for him what weight he gave that report.[4] With the benefit of cross-examination, that learned Magistrate would been better placed to come to a view regarding matters such as whether Mr Hull’s report was fair and impartial, and whether Mr Hull used confidential information in preparing his report. The preferable course would have been for the learned Magistrate not to accept the report into evidence.
[4]Transcript page 1-4, lines 33-35.
However, it is clear from his reasons for decision that the Magistrate did not rely on Mr Hull’s report. Although the acceptance of the report was, perhaps, an error, it is not one that would have had a substantial impact on the result of the case.
Mr Saye says that bearers are completely different from joists, so a comment about damaged joists cannot encompass damaged bearers. He says the learned Magistrate erred in not finding that Mr Stam did not find the degraded bearers above the garage.
It is, of course, true that bearers are different from joists. However, the learned Magistrate’s comment should not be read in isolation. The learned Magistrate goes on to note that Mr Stam identified termite damage in the sub floor area but that the damage occurred about 25 years ago and, in his opinion, would not get worse. The learned Magistrate noted that Mr Stam did not consider the sub floor to be a major defect or safety hazard. The learned Magistrate also noted that Mr Cornell had a different view of the condition of the bearers.
The point of the learned Magistrate’s decision was that reasonable minds, presented with the same facts, may have different conclusions. The learned Magistrate did not conclude that Mr Stam was right and Mr Cornell was wrong; he concluded that Mr Stam’s report was reasonable. The learned Magistrate evaluated “reasonable” against Mr Stam’s expertise, not Mr Cornell’s expertise. He also evaluated “reasonable” against the limitations of the report:
This report is NOT an all encompassing report dealing with the building from every aspect. It is a reasonable attempt to identify any obvious or significant defects at the time of the inspection. Whether or not, a defect is considered significant or not depends too (sic) a large extent, upon the age and type of building inspected…It is not a structural report.
The learned Magistrate’s comment about Mr Cornell not being available for cross examination were not directed to the conclusions that the bearers were damaged, but to whether Mr Stam should have noticed the damage. Mr Stam gave evidence that he did not think the bearer presented a particular problem.[5] Mr Cornell was not available to explain his contrary view. The learned Magistrate’s comments are unexceptional.
[5]Transcript page 1-19, lines 1-13.
Mr Saye says that, if the learned Magistrate was correct in his finding that Mr Stam was not subject to the same standard of care as an engineer, then building inspectors should not be expected to point out structural defects. In fact, Mr Stam’s report makes it clear that it is not a structural report. The report also makes it clear that it is not a guarantee that damage or defects do not exist.
I believe that on his examination of the evidence, the learned Magistrate’s findings were open.
It is true that the learned Magistrate did not make any finding about the cost of repainting. Given the earlier findings – that Mr Stam should not bear the cost of rectification – the learned Magistrate may have considered it unnecessary to make a finding about the painting.
Mr Stam told the learned Magistrate that the paint was not a structural issue but an aesthetic issue.[6] The learned Magistrate observed that peeling paint is something that Mr Saye could have observed, and did observe, without the assistance of a building report.[7] Even though there was a quote for repainting before the learned Magistrate, there was no evidence that repainting was necessary, or that the repainting was a necessary consequence of any error in Mr Stam’s report.
[6]Transcript page 1-16, lines 4-11.
[7]Transcript page 1-21, lines 44-45.
It is regrettable that the Magistrate allowed into evidence, the report of Mr Hull, however, as noted above, he does not appear to rely on it, in his reasons for decision. His admission of the report, though an error, did not have an impact on the final outcome. Otherwise, there is no reasonably arguable case that the learned Magistrate was in error. Leave to appeal should be refused.
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