Space Con Pty Ltd v Blue Star Pacific Pty Ltd
[2011] QCATA 361
•31 January 2011
| CITATION: | Space Con Pty Ltd v Blue Star Pacific Pty Ltd [2011] QCATA 361 |
| PARTIES: | Space Con Pty Ltd (Applicant/Appellant) |
| v | |
| Blue Star Pacific Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL352-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 31 January 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal is refused. |
| CATCHWORDS: | Minor Civil Dispute – Tribunal processes – where grounds of appeal complain about the hearing process but do not identify error – where complaint not raised at the hearing nor any adjournment sought Queensland Civil and Administrative Tribunal Act 2009, ss 3(b), 28(3)(b), 28(3)(d), 142(3) QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 |
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
In June 2009 Space Con engaged the services of Blue Star to do the electrical work fit out of a sushi bar at the Robina Town Centre Project. Space Con and Blue Star entered into a written agreement for Blue Star to carry out the work at a fixed price of $8,700 plus GST. The written agreement is signed by Raphael Shin on behalf of Space Con. There is no suggestion he did not have authority to sign the agreement.
Space Con gave a cheque for $2,500 to Blue Star for the initial deposit but this cheque was dishonoured. After some discussions with Mr Shin the deposit was ultimately paid by bank transfer and Blue Star commenced to carry out the work.
In additional to the work the subject of the written agreement, further work was agreed to which included repair to a dishwasher, check telephone lines and test a faulty fridge. This work is confirmed in a daily time sheet. The total cost of this was $765.60. Therefore the total amount of the work undertaken by Blue Star was $10,335.60. Of this amount, Space Con only paid $5,782.08.
To recover the balance of $4,553.52, Blue Star commenced a proceeding in the Minor Civil Disputes jurisdiction of the Tribunal on 21 December 2009. The particulars of the claim are conveniently set out in a letter to the Tribunal accompanying the application and it is supported by the written agreement, and various invoices.
By its Response, Space Con firstly admits that it accepted the written quotation given to it by Blue Star. The Response then goes on to deny liability for the outstanding amount on the basis that the work was not performed by Blue Star within a nominated deadline and it did not meet specific performance criteria. As a consequence, it is alleged, Blue Star breached the contract and the resulting damages suffered by Space Con exceeded the amount to amount of Blue Star’s claim resulting in a set off.
Importantly, Space Con did not raise any allegation in the Response that subsequent to the signed written agreement and the performance of the work, there was an oral agreement between Mr Shin and a Director of Blue Star that the amount of the contract works would be varied from that stated in the written agreement down to $5,000, presumably including GST.
The matter came on for hearing before a Tribunal Adjudicator on 8 February 2011. The learned Adjudicator heard evidence from Mr Wyeth representing Blue Star and Mr Shin of Space Con. It also heard submissions from Mr Thomson, Solicitor, acting for Space Con.
At the conclusion of the hearing the learned Adjudicator was satisfied that the balance of the money was due and payable and made an order that Space Con pay to Blue Star the sum of $4,643.52 within 30 days.
From that decision, Space Con has filed an application for leave to appeal or appeal. Leave to appeal is necessary as this is an appeal decision in the Minor Civil Disputes jurisdiction[1].
[1] QCAT Act, s 142(3).
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?[2] Is there a reasonable prospect that the applicant will obtain substantive relief?[3] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[4] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[5]
[2] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[3] Cachia v Grech [2009] NSWCA 232 at 2.
[4] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[5]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 grounds for appeal prepared by Space Con’s solicitors challenge the Tribunal’s processes rather than attempt to identify error of law, or fact for that matter, on the part of the learned Adjudicator. Firstly, it is argued that leave to appeal should be granted because at the hearing the parties did not have the benefit of agreed facts, a statement of issues or witness statements. Secondly, the Tribunal did not have the benefit of any sworn evidence. There seems to be a challenge that the evidence before the Tribunal was not tested in any way. Presumably this is a reference to cross examination of witnesses however, when one reads the transcripts, at no stage did Mr Johnson make any complaint about the Tribunal processes nor did he request to cross examine any of the witnesses from Blue Star.
There is a complaint that Blue Star’s solicitors wrote to the Tribunal Registry requesting the matter be re-listed for a directions hearing, in other words seeking an adjournment, but again this was not raised before the learned Adjudicator at the commencement of the hearing. Finally, there is presumably a complaint that Space Con’s principal witness, Mr Shin, because he lives in Sydney, chose to appear by telephone rather than attend the Tribunal. It is submitted by Space Con that “with the benefit of hindsight” this was not wise and against Space Con’s interest. Once again, the only comment that can be made against this contention is that Mr Shin requested to attend by telephone, that request was granted, no complaint was made at the commencement of the hearing that it would be preferable for Mr Shin to appear in person and the application be adjourned. It is only with the benefit of hindsight, it seems, that this point is made by Space Con. This does not, obviously, establish any error on the part of the learned Tribunal Member in the manner in which he conducted the hearing.
The fact that there were no agreed facts or statement of issues, nor sworn evidence does not invalidate the process. The QCAT Act provides that the Tribunal must deal with matters in a way that is accessible, fair, just, economical, informal and quick[6]. The Act also provides that the Tribunal, in conducting a proceeding, is not bound by the rules of evidence or any practices or procedures applying in Courts of Record[7]. The Tribunal must also act with as little formality and technicality, and with as much speed as the requirements of the Act, with the proper consideration of the matters as the Tribunal permit[8].
[6]QCAT Act, s 3(b).
[7] QCAT Act, s 28(3)(b).
[8] QCAT Act, s 28(3)(d).
Bearing in mind those obligations imposed on the learned Adjudicator in conducting the hearing, it is quite apparent from the transcript that both parties had every opportunity to present their case. From what can be ascertained from reading the transcript, the Application, the Response and all relevant evidence was put before the learned Adjudicator, the conclusion he came to was clearly open on that evidence.
As a matter of fairness to Space Con, it was permitted to lead evidence about matters that were not raised in the Response. I am referring specifically to the allegations made by Space Con at the hearing for the first time, and argued by Mr Johnson, that the written contract was varied resulting in a compromise agreement for a fixed price of $5,000. Further, evidence was given, by Mr Johnson, that this agreement was reduced to a Deed of Release and forwarded to Blue Star for consideration. Mr Wyeth from Blue Star denied any such agreement.
Despite the allegations raised in the response as to the quality of work, the only defence pursued at the hearing was the alleged compromise agreement. The learned Adjudicator, in his reasons gave careful consideration to the evidence that was adduced during the hearing about the alleged oral compromise agreement and concluded that the signed written contract was the operative document. He did so on the basis that such an important issue was not raised in the Response nor in any other correspondence emanating from Mr Johnson’s office. One can reasonably assume that if Mr Johnson had instructions from Space Con about the oral agreement at the time the Response was prepared that fact would have no doubt been pleaded suggesting, as the learned Adjudicator found, that this issue had only been recently raised by Space Con. He concluded that there was not sufficient evidence to displace the written agreement.
Space Con’s complaint about the processes of the Tribunal does not raise any ground for leave to appeal. In respect of the substantive issues before the Tribunal, Space Con have not identified any error on the part of the learned Adjudicator and the conclusion reached by him was clearly open on the evidence, and in my view persuasively so.
As no error of law has been established, nor is any apparent, leave to appeal is refused.