Smith v Condie
[2011] QCATA 80
•4 April 2011
| CITATION: | Smith v Condie [2011] QCATA 080 |
| PARTIES: | Carl Stephen Smith (Applicant/Appellant) |
| v | |
| Garry John Condie trading as Listonia Landscaping (Respondent) |
APPLICATION NUMBER: APL350-10
| MATTER TYPE: | Appeals |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Justice Alan Wilson, President Susan Gardiner, Member |
DELIVERED ON: 4 April 2011
DELIVERED AT: Brisbane
ORDERS MADE: Application for leave to appeal refused.
| CATCHWORDS : | APPEAL – LEAVE TO APPEAL – BUILDING MATTER – where Mr Smith entered into a contract with Mr Condie for work that was part of a larger building project – where dispute about performance of work – where dispute as to whether Mr Condie held the appropriate class of licence – where Mr Smith seeks leave to appeal the decision at first instance on questions of law and fact – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009, ss 3, 32, 147 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCA 456, cited Vetter v Lake Macquarie City Council (2001) 202 CLR 439, cited |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
President:
I have had the benefit of reading the reasons of Ms Gardiner in draft. I agree with her reasons and her conclusions, and the order she proposes.
Member Susan Gardiner:
Mr Carl Smith and his wife entered into a contract with Mr Garry Condie for building work at their property as part of a larger building project. A number of disputes arose between the parties out of the performance of this work; and, because Mr Condie did not hold the appropriate class of licence from the Building Services Authority (‘BSA’) for the work specified in the contract.
Proceedings were begun by Mr Smith in QCAT’s predecessor, the Commercial and Consumer Tribunal (CCT), in July 2009. On 1 December 2009 that Tribunal became part of QCAT. On 25 June and 22 September 2010 the matter came before QCAT for a hearing. The decision was later handed down by the presiding Member on 11 November 2010.
Mr Smith seeks to appeal the decision. Because the appeal arises under s 142(1) of the QCAT Act and, on its face, involves both questions of law and fact, leave to appeal is necessary under s 142(3).
Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?
The first of these principles (public advantage) is quickly determined. This decision concerns a domestic building matter which is important to the parties but does not identify, or involve, any question of general importance upon which further argument and a decision of this Appeal Tribunal would be to the public advantage.
The principles that remain are particular to the matter itself: is there a reasonably arguable case of error in the primary decision and reasonable prospect that the applicant would obtain further substantive relief or, is leave necessary to correct a substantial injustice to the applicant, caused by some error?
In seeking to show why leave should be granted to him, Mr Smith sets out nine reasons in his application, and later submissions. They broadly fall into three categories:
1. Assertions about procedural fairness – that the learned Member did not allow an expanded claim, first notified by Mr Smith just one month prior to the hearing;
2. Assertions about misuse of the evidence – that the Member did not adequately address the evidence, relied upon inaccurate evidence, made incorrect findings on the evidence before him or did not provide Mr Smith with adequate opportunity to give his evidence; and finally
3. Assertions about the law – that the learned Member did not properly apply the law.
Finally, Mr Smith also seeks to rely on new evidence, set out in both his original application for leave to appeal,[1] and in another application filed with it. New evidence will generally only be considered by the Appeal Tribunal if, and after, leave to appeal is granted;[2] it may, of course, reveal or be relevant to an error of law on the Tribunal’s part, and for that reason I have examined it.
[1]Mr Smith’s leave to appeal application, ground 5.
[2]QCAT Act, s 147(2).
Mr Smith’s proposed new evidence includes reports created after the hearing of the matter, and further evidence (for example, drawings and photographs) that could either have been prepared for and tendered at the original hearing (with no explanation as to why this did not occur), or which would, in any event, have been unlikely to change or affect the findings of the learned Member in any material way.
Mr Smith says that the learned Member did not allow his expanded claim, made one month prior to the hearing.[3] He did not seek leave to amend his original application at the time of making the extra claim but, rather, simply raised it in submissions filed before the hearing. The learned Member disallowed this new claim as being unfair to the respondent, because its late delivery did not allow sufficient time for the respondent to be provided with proper particulars of the additional sums sought by Mr Smith.
[3]Mr Smith’s leave to appeal application, ground 8.
This building dispute was commenced in the CCT by Mr Smith in July 2009. There had been substantial case management in the matter after time, particularly since the establishment of QCAT on 1 December 2009. From the first directions hearing before the earlier Tribunal on 18 August 2009 through three further directions hearings and a conciliation conference, the parties had been preparing (for almost a year) for the eventual hearing commencing on 25 June 2010.
The objects of the QCAT Act require the Tribunal to deal with matters in a way that is accessible, fair, just, economical, informal and quick.[4] Parties to proceedings are required to ‘act quickly’: QCAT Act, s 45. Mr Smith ignored those requirements: the invoices for tools for the further work that he claimed, and attached to his submissions filed on 25 May 2010, are dated July 2009.
[4]QCAT Act, s 3.
There was no explanation for Mr Smith’s delay. He did not – as the learned Member pointed out – seek to amend his original claim. He simply left his amended claim too late, and advanced it in a form, which would not have allowed a fair hearing to his opponent.
Taking into account the history of the matter and the long lead time to the hearing, and the objects of the QCAT Act, the learned Member’s decision to refuse Mr Smith a very late change to his case, advanced in an excessively informal way, was both open and reasonable and does not involve any error.
Mr Smith’s second submission is that the learned Member did not adequately address the evidence,[5] relied upon inaccurate evidence,[6] made incorrect findings on the evidence before him[7] (particularly in relation to the invoices the Member allowed the respondent to claim) or did not provide Mr Smith with adequate opportunity to give his evidence.[8] Mr Smith also says the learned Member relied on the evidence of the independent expert witnesses to assess the scope of works rather than the quote of Mr Condie, and the contract.[9]
[5]Mr Smith’s leave to appeal application, ground 1.
[6]Ibid, grounds 1 and 3.
[7]Ibid, ground 9.
[8]Ibid, ground 4.
[9]Ibid, ground 7.
The transcript shows that the learned Member carefully considered all the evidence, and gave Mr Smith ample opportunity to present his case on both hearing days. In relation to the invoices, at the hearing on 22 September 2010 the Member gave Mr Smith substantial opportunity to present his evidence on each of the many invoices in this matter.
I can find nothing to support Mr Smith’s assertions that the learned Member did not adequately address the evidence, relied upon inaccurate evidence or made incorrect findings on the evidence before him. The assertions are just that – assertions; they are not borne out by anything Mr Smith can point to in the transcript of the hearing.
The issue of the learned Member relying on expert evidence arises, in the reasons in a discussion concerning the additional sums sought by Mr Smith, close to the hearing. As noted above, the learned Member disallowed this claim as being unfair to the respondent. However, after making this finding the learned Member nevertheless went on to observe that the additional matters were the subject of evidence from the two experts who gave evidence, and that both of these witnesses said that the sums sought by Mr Smith were excessive and outside the scope of works in the original quote and contract.
It is not necessary for this Appeal Tribunal to decide on this ground. The initial findings of the learned Member on the question of fairness have not been disturbed by this Tribunal. This was the primary reason why the learned Member disallowed the wider claim and it is, therefore, unnecessary to consider the second alternative ground. Even so, the learned Member’s apparent acceptance of the views of two expert witnesses was plainly reasonable, and appropriate. Nothing has been said by Mr Smith which would undermine that conclusion.
Mr Smith’s final assertion is that the learned Member did not properly apply the law.[10] It was not disputed by Mr Condie that he did not hold the appropriate class of license for the work contracted between the parties. Mr Condie was therefore only able to recover monies on the basis set out in s 42 of the Queensland Building Services Austhority Act 1991 (the ‘QBSA Act’).
[10]Ibid, grounds 2 and 6.
There were also factual issues about rectification of defective work pursuant to a BSA Direction to Rectify dated 9 March 2009. (That direction, as the learned Member noted in passing in his reasons, should have been a cause direction to an unlicensed builder, but the substantive issues remain unaffected by the incorrect procedure.)
The learned Member found that the contract had been validly terminated, and then considered the parties’ positions, post termination. The learned Member found that, under s 42, Mr Smith was entitled to the reasonable costs of rectification of the work specified in the BSA notice. Mr Smith’s other claims outside the rectification notice were, however, disallowed. That occurred in the context which has already been extensively analysed in light of Mr Smith’s other appeal grounds.
Where a decision of the Tribunal at first instance involves questions of fact, and degree, there will be no grounds for a successful appeal so long as the correct principles of law are applied[11] and the final conclusion is not unreasonable.[12]
[11] Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCA 456 at 286.
[12] Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 450.
The analysis set out above shows that there is no demonstrated or discernable error in the learned Member’s decision in the application of the law and his determination on the facts before him was reasonably open to him on the evidence. There is no question of importance about which a further argument and a decision of the Appeal Tribunal would be of public advantage.[13] Leave to appeal should be refused.
[13]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577.
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