Stainbusters Cleaning Systems v Orchid Avenue Realty Pty
[2013] QCATA 102
•26 March 2013
| CITATION: | Stainbusters Cleaning Systems v Orchid Avenue Realty Pty [2013] QCATA 102 |
| PARTIES: | Stainbusters Cleaning Systems (Applicant/Appellant) |
| v | |
| Orchid Avenue Realty Pty t/as Ray White Surfers Paradise (Respondent) |
| APPLICATION NUMBER: | APL 431-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr Richard Oliver, Senior Member Ms Susan Gardiner, Member |
| DELIVERED ON: | 26 March 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal is refused |
| CATCHWORDS : | Minor Civil Dispute – where claim for work done on invoices produced– where tow invoices outside the statutory period for recovery – whether further evidence should be accepted on the other invoices. Queensland Civil and Administrative Tribunal Act2009 ss 137,138, 142(3), 146 Limitation of Actions Act 1974 s10 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
Senior Member Richard Oliver:
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:
Stainbusters Cleaning Systems brought a claim in the Tribunal at Southport against Ray White Surfers Paradise for $7,391.60 for cleaning work performed by Stainbusters at rental premises managed by Ray White between 14 April 2005 to 19 November 2010. After a hearing on 5 October 2011 the Tribunal ordered that Ray White pay Stainbusters the sum of $177.00.
From that decision Stainbusters has filed an application for leave to appeal or appeal. An appeal in the minor civil dispute jurisdiction can only be brought with the Tribunal’s leave or permission.[1] The question whether or not leave 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]
[1] s 142 Queensland Civil and Administrative Tribunal Act 2000,
[2] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[3] Cachia v Grech [2009] NSWCA 232 at [13].
[4] QUYD Pty Ltd v Marvass Pty Ltd (supra).
[5] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, at 389; McIver
The alleged outstanding amounts are documented by Stainbusters in a series of invoices as follows:
a) Invoice RC25895 dated 14 April 2005 for $4, 499.60;
b) Invoice RC25898 dated 28 April 2005 for $350.00;
c) Invoice TL30307 dated 1 July 2007 for $2, 282.00;
d) Invoice 56181 dated 20 January 2010 for $85.00;
e) Invoice 57137 dated 6 April 2010 for $100.00;
f) Invoice 60191 dated 19 November 2010 for $125.00.
The learned adjudicator decided that the two 2005 invoices were statute barred under the Limitation of Actions Act 1974. The Act says that an action founded on contract cannot be brought after the expiration of six years from the date on which the cause of action arose.[6] However, in the appeal, Stainbusters disputes this and says time should run from the date on which the debt was last acknowledged by the debtor not the date of the initial demand for payment for the work completed.
[6] Limitation of Actions Act 1974 s 10(1).
In support of its position Stainbusters relies on section 35(3) of the Act which provides that the right to recover shall be deemed to have accrued from the date of any acknowledgement or the last payment and will run from that date.
Stainbusters says that the 2005 debts were acknowledged by the respective Agencies. Ms Curran of Stainbusters relies on diary notes she has of conversations with employees of the two Agencies in 2006 and 2009 saying that the debts were being followed up with the insurers of the rental properties. These statements would seem to be in reply to inquiries from Ms Curran about payment of the debts.
The question is whether the evidence of Ms Curran and the diary notes are sufficient to be categorised as an acknowledgement of debt. Firstly, there is no direct statement from the persons she spoke to that the respondents owe the money claimed. The statement relied upon is simply that the insurers will be followed up. The inference is that it is up to the insurers to decide whether the debt will be paid. Secondly, there is no objective evidence of the acknowledgment in writing that the debts are owed to Stainbusters. I am therefore not satisfied that this response from the agencies, putting at its highest, is an acknowledgement of debt. In my view, an acknowledgment should contain some firm admission of liability and neither of these diary notes does this.
I am satisfied that for the two 2005 invoices, the six year limit has passed and the learned adjudicator was right to strike out these applications because they are statute barred.
Invoice TL30307 dated 1 July 2007
Here the learned adjudicator found there was no consultation with the respondent in relation to the extent of the work to be performed by Stainbusters; no consultation in relation to potential insurance claims; and finally, no consultation with the agency where there was a limit on the cost of work that could be authorised by the respondent without reference to the owner for approval.
To support the claim for this invoice, Stainbusters seeks to introduce new evidence not produced to the learned adjudicator. Permission to lead fresh evidence in an appeal will only be granted if it was not reasonably available at the time the proceeding was heard and determined.[7] Ordinarily, an applicant for leave to adduce such evidence must satisfy each of the following tests:
a) The evidence could not have been obtained with reasonable diligence for use at the trial;
b) The evidence, if allowed, would probably have an important impact on the result of the case (although it need not be demonstrated that it would be decisive); and
c) That the evidence is credible though it need not be incontrovertible.[8]
[7] ss 137 and 138 QCAT Act.
[8] Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408
The invoice produced is dated 19 June 2007. The agency agreement is dated 29 July 2008. Both of these documents were in the possession of Stainbusters and would have been so at the time of the original hearing before the learned adjudicator.
An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party’s case at the initial hearing. Stainbusters has provided no explanation as to why this material was not available earlier. That evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned adjudicator
Invoice 56181 dated 20 January 2010 for $85.00;
This invoice was allowed by the learned adjudicator and an order made in Stainbusters’ favour.
Invoice 57137 dated 6 April 2010 for $100.00
The learned adjudicator found that although it was clear the work had been completed under this invoice, the original work was commissioned by L J Hooker at Paradise Point, not Ray White Surfers Paradise. Because of this, although the learned adjudicator had some sympathy for Stainbusters because the work had been done, Stainbusters were simply suing the wrong person. Again there may have been evidence that could have been produced to learned adjudicator but which was not. Stainbusters has not provided an explanation as to why this material was not available earlier. That evidence should not be now admitted.
Invoice 60191 dated 19 November 2010 for $125.00.
This final invoice is not pursued by Stainbusters in the appeal. The learned adjudicator accepted the evidence at the hearing form Ray White Surfers Paradise that his invoice was a subsidiary invoice and that the amount was actually paid.
There is no demonstrated or discernable error in the learned adjudicator’s decision. There is no question of importance about which a further argument and a decision of the Appeal Tribunal would be of public advantage. Leave to appeal should be refused.
Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578,
580.
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