Steer Constructions v Tile Wizards
[2018] QCATA 8
•30 January 2018
CITATION: | Steer Constructions v Tile Wizards [2018] QCATA 8 |
PARTIES: | Venclawral Pty Ltd t/a Steer Constructions |
| v | |
| Tile Wizards (Australia) Pty Ltd (Second Respondent) | |
APPLICATION NUMBER: | APL051-17 |
MATTER TYPE: | Appeals |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Gordon |
DELIVERED ON: | 30 January 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | Leave to appeal is refused. The appeal therefore fails. |
CATCHWORDS: | APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN NO APPEAL LIES – leave to appeal – where minor civil dispute heard by Adjudicator – whether any reasonably arguable grounds of appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3) |
APPEARANCES: |
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
This claim was heard by an Adjudicator sitting in the tribunal’s minor civil dispute jurisdiction. The claim was originally brought by Tile Wizards (Australia) Pty Ltd but this was changed to Tile Wizards Pty Ltd when it emerged that this was the correct applicant.
In the claim, Tile Wizards sought $9,928.48 from Venclawral Pty Ltd t/a Steer Constructions. This, it was said, was the contract price of bamboo timber flooring supplied to Steer Constructions, plus the formal costs of bringing and serving the claim.
In a Response to the claim, Steer Constructions said that the flooring as supplied was not in accordance with a sample, and turned out to be a different colour and quality. Also, it was badly fitted and would move and flex when people walked on it. Steer Constructions said they had demanded that the floor be removed altogether. When Tile Wizards failed to comply, Steer Constructions removed it themselves and returned the materials to Tile Wizards. Steer Constructions refused to pay anything for the floor. Instead, they counterclaimed the sum of $850 from Tile Wizards being the cost of removing the floor and returning it.
It was unfortunate that the application took a total of four hearings to be dealt with completely. All hearings were at Pine Rivers.
On day one, 14 July 2016, due to pressure of the list the case was started late in the afternoon and there was insufficient time to complete it. The Adjudicator took the opportunity to clarify the issues and give appropriate directions.
One important issue which was considered on day one was whether the claim was a building dispute. If so, the Tribunal would have had no jurisdiction to hear it without the parties having gone through the dispute resolution process of the Queensland Building and Construction Commission.[1] Whether the claim was a building dispute turned on two things. Firstly, whether under the contract Tile Wizards merely had an obligation to deliver the floor (as it claimed) or whether they also had an obligation to install it (as Steer Constructions claimed) and if so whether there was a complaint about the quality of the installation.
[1]Required by section 77(2) of the Queensland Building and Construction Commission Act 1991 (Qld).
At the hearing, Steer Constructions clarified their case as being that it was simply that the wrong product had been supplied. They had ordered Kyoto Tan boards, but got something else. They said it was not an issue about the quality of the installation work,[2] although it was noticed after installation that the floor had a lot of movement.[3]
[2]Transcript 14 July 2016 1-10, line 44; 1-11, line 20; 1-14, line 14; 1-29 line 14, 1-38 lines 3 to 19; also Transcript 8 September 2016 1-24 line 21.
[3]Transcript 14 July 2016 1-26, line 1.
On that basis, the Adjudicator was content for the tribunal to proceed to hear the claim despite it not having been to the dispute resolution process of the QBCC because it was not a “building dispute” as defined.[4]
[4]It was not a dispute relating to the performance of renovation, alteration, extension, improvement or repair of a home or part of a home: Queensland Building and Construction Commission Act 1991 (Qld), sch 1B, s 4.
The matter was then listed to be heard on day two, 8 September 2016, with the whole afternoon allocated for its disposal. Mr Steer attended that day and asked the Adjudicator to dismiss the claim on the basis that the applicant Tile Wizards (Australia) Pty Ltd was the wrong legal entity to bring the claim. It turned out there were two companies which were closely related. There was Tile Wizards (Australia) Pty Ltd and Tile Wizards Pty Ltd. Tile Wizards (Australia) Pty Ltd had brought the claim, when it should have been Tile Wizards Pty Ltd. Mr Steer also pointed out that Mr David Drysdale, who had been presenting the claim for the applicant, had no authority to do so because he was not a director. Because he believed he had a knock-out point, Mr Steer did not bring his witnesses to the hearing. This was despite the Adjudicator having indicated on day one that this would be necessary for a proper resolution of the matter.
The hearing that day had to be abandoned for these matters to be sorted out. The Adjudicator ordered that identity of the applicant be changed to Tile Wizards Pty Ltd. The newly named applicant was given time to give to Mr Drysdale a letter authorising him to represent it at the adjourned hearing.
Day three was on 13 October 2016. On that day, the parties attended again. Apart from Mr Drysdale himself, Tile Wizards called three witnesses, all of whom had made statutory declarations. Michael Doolan gave evidence that he telephoned Mr Steer and told him that the boards as specified in the order could not be supplied, but that closely similar boards were available. Later Mr Steer attended the store, saw the similar boards on the display floor and agreed to purchase those boards instead. The manager of the store Phillip Openshaw gave evidence by telephone which corroborated Mr Doolan’s evidence with respect to the telephone call and store visit. Matt Hogan also gave evidence. He had originally been engaged to install the floor and gave evidence that he had been engaged directly by Steer Constructions. As it turned out, another contractor was engaged because Mr Hogan was unavailable to install the floor within the required timeframe.
The case for Tile Wizards was therefore that it had no contractual obligation to install the boards, and that the order was varied by consent to the new boards Stonewood Coffee, which is what they supplied. Accordingly, they were entitled to payment.
On behalf of Steer Constructions apart from Mr Steer, two witnesses were called. Randall Smith was the owner of the property in which the floor was installed. He explained that he was unhappy with the floor because it was not the product that he had ordered. Also, he said he was not happy with the quality of the installation – it had a wave effect as you walked across it. Scott Norman was also called. He had delivered the boards back to Tile Wizards after they had been lifted.
The Adjudicator took time to consider her decision and then delivered it orally to the parties on 1 December 2016. After reciting the uncontroversial facts and the evidence given by the witnesses, the most important findings of fact were that:
a)It was not part of the contractual responsibility of Tile Wizards to install the floor;
b)After Steer Constructions were contacted by Tile Wizards about difficulties with the original order, they selected a different product to be delivered under the contract;
c)Tile Wizards supplied that different product;
d)Any colour differences between the two products was therefore irrelevant;
e)It was the responsibility of Steer Constructions to check that the material supplied was correct before it was installed, because they (and not Tile Wizards) had the responsibility to install the floor;
f)Accordingly, Steer Constructions could not claim as a set-off the cost of lifting the floor and delivering it back to Tile Wizards.
On that basis, the Adjudicator ordered Steer Constructions to pay to Tile Wizards its invoice for the supply of the floor, together with another invoice which was not in dispute, interest and formal costs and fees. The total came to $8,049.60.
The grounds of appeal
The appeal is made on 14 grounds, supported by an attachment setting out the facts as perceived by Mr Steer. For convenience I have categorised the points made in the following paragraphs.
Wrong entity suing. The filed claim said that Tile Wizards Pty Ltd traded under ABN 90077843657 but it should have been ABN 12075421797 and the application should have been dismissed on that basis.[5]
[5]Ground of appeal 2.
Wrong forum. The application should not have been heard in QCAT at all, since there were questions about the quality of the product, the change of colour and the installation. Therefore it was a matter for the Queensland Building and Construction Commission. The Tribunal should have referred the matter to the QBCC.[6]
[6]Ground of appeal 5.
Credibility issues. The Adjudicator should have disbelieved the evidence given on behalf of Tile Wizards because:[7]
a)Its witness Mr David Drysdale, gave evidence on oath that he was a director of Tile Wizards but this was incorrect;
b)The dates in the statements of the witnesses for Tile Wizards were “all over the place”;
c)The evidence of Michael Doolan was tainted because he was employed by Tile Wizards and he had informed Steel Constructions before the hearing that he was going to tell the truth about Tile Wizards unilaterally changing the specifications;
d)The installer Ricky Henderson should have given evidence for Tile Wizards but did not do so. Instead Matt Hogan gave evidence about the installation but was unable to do so because he didn’t install it;
e)The evidence given by Mr Openshaw should have been disbelieved because had had a very hostile relationship with Mr Steer.
[7]Grounds of appeal 1, 4, 7, 8, 9, 12.
Factual perversity. On the main issues the Adjudicator erred by:[8]
a)Deciding that the boards delivered to site were “Stonewood” when there was no evidence to that effect;
b)Deciding that it was not the practice of Tile Wizards to document changes to product specifications and accordingly deciding that the specification had been changed, when there was nothing in writing to prove this (it being a requirement of Steer Constructions that variations should be in writing);
c)Deciding that terms and conditions of sale were known to Steer Constructions when this was not the case, as well as deciding this issue on the basis that the terms and conditions would be widely used so Mr Steer should have known about them.
[8]Grounds of appeal 6, 11, 13, 14.
Bias. The Adjudicator was not impartial because she would say during the hearing words to the effect that someone has to win and someone has to lose and (to Mr Steer) he was not going to like the outcome. The Adjudicator was very dismissive about what Mr Steer and his wife had to say and she showed her support for the applicant no matter was evidence was presented.[9]
[9]Ground of appeal 3.
One ground of appeal did not disclose any complaint of error on the part of the Adjudicator.[10]
[10]Ground of appeal 10.
I shall deal with these grounds of appeal in turn.
As for the wrong entity suing, the legal entity is identified by the company name and its ACN. A different ABN number does not mean that the legal entity is different. A legal entity can have a number of different ABNs. Mr Steer raised this with the Adjudicator on day two.[11] It is true that the applicant was originally the wrong company, but this was corrected on day two. This ground of appeal fails.
[11]Transcript 8 September 2016 1-2, line 35.
As for the wrong forum, the claim was properly within the Tribunal’s minor civil dispute jurisdiction. Apart from the ability to appoint an assessor the tribunal cannot refer claims to the QBCC. In any case, Mr Steer was clear during the hearing that the only issue was that the wrong product had been delivered, and that the quality of the installation was not before the tribunal,[12] although it was noticed after installation that the floor had a lot of movement.[13] On that basis, the despite was not a building dispute as defined. In any case, the Adjudicator made a clear finding of fact that the contract was only one for supply of goods as Tile Wizards were saying. That finding would also mean that it was not a building dispute.
[12]Transcript 14 July 2016 1-10, line 44; 1-11, line 20; 1-14, line 14; 1-29 line 14, 1-38 lines 3 to 19, also Transcript 8 September 2016 1-24 line 21.
[13]Transcript 14 July 2016 1-26, line 1.
On the issues of credibility, the purpose of hearing the witnesses, and allowing a party to cross examine them is to try to expose any difficulties with their credibility. Mr Steer raised with the Adjudicator the fact that David Drysdale had stated that he was a director of Tile Wizards on day two.[14] The Adjudicator sought an explanation from Mr Drysdale and acknowledged that she would need to take into account his error when considering credibility.[15] Also on day two, Mr Steer raised with the Adjudicator inconsistency or absence of dates in the statements of the witnesses for Tile Wizards,[16] and the witnesses were cross-examined about this. As for Mr Doolan still being employed by Tile Wizards this was known to the Adjudicator. As for Mr Doolan having told Steel Constructions before the hearing that he was going to tell the truth that Tile Wizards had unilaterally changed the specifications, this is something which ought to have been put to Mr Doolan in cross-examination; it is far too late to raise this now. As for Ricky Henderson being an important witness, Steer Constructions should themselves have called Mr Henderson if he was an important witness. As for the poor relationship between Mr Openshaw and Mr Steer, on day three, Mr Steer raised this issue with the Adjudicator.[17]
[14]Transcript 8 September 2016, line 37.
[15]Transcript 8 September 2016, line 1-18, line 8.
[16]Transcript 8 September 2016 1-9, line 20.
[17]Transcript 13 October 2016 1-69, line 30.
All the credibility issues capable of being considered by the Adjudicator were before her and it is clear from the Adjudicator’s careful decision and weighing of the evidence that they were all taken into account. The case turned on credibility of the witnesses as the Adjudicator pointed out on a number of occasions.
Turning now to the factual perversity issues. It is said that there was no evidence that the boards delivered were “Stonewood”. But this was not an issue between the parties: the parties agreed that the boards supplied were not Kyoto Tan as originally ordered. It is said that the Adjudicator was wrong to accept that Tile Wizards would not normally document changes to specification and should have required written proof of a change. There was however, an abundance of oral evidence to that effect, supported by the contemporaneous written evidence as recited by the Adjudicator. Contrary to what is said by Mr Steer in this appeal, the Adjudicator did not make a finding that the terms and conditions were known to him. She did recite a paragraph from the terms and conditions which would have been relevant had she made such a finding, but then she explained that Mr Steer’s case was that he had never been given a copy of them. The terms and conditions did not therefore, form part of her reasoning in finding against Steer Constructions.
On the issue of bias, the concern about the Adjudicator’s comments seems to come from certain comments made on day one when the Adjudicator was discussing the issues with the parties and whether this required a dispute resolution by QBCC. The Adjudicator pointed out that it would be likely that such a dispute resolution certificate could have been obtained easily because there seemed to be little middle ground between the parties bearing in mind the floor had already been removed. She said (seemingly addressing Mr Steer):[18]
So the fact is you either pay the bill or you don’t. It seems someone wins and someone loses. That’s the simple matter here. I presume you’ve tried to sort this out yourselves and have been unsuccessful?
[18]Transcript 14 July 2016, 2-19.
To which Mr Steer explained that they had been to mediation.
At the end of day one, after it was clear that the matter could not proceed that day for lack of time, the Adjudicator said:[19]
And that’s why I want to hear evidence from all the parties with cross-examination etcetera so that I – because I’m going to have to make a finding. Someone is going to have to lose and someone is going to have to win. I mean, in most of these cases, it’s probably easier to try and resolve it, because someone’s going to be very unhappy at the end of the day, because at the end of the day, I’m going to make a finding.
[19]Transcript 14 July 2016 1-33 lines 1 to 6.
On day two, when complications arose about Mr Drysdale being able to represent the applicant company, and clarification being needed about the identity of the applicant company on the issue raised by Mr Steer, when there were discussions about a possible adjournment so that the difficulties could be sorted out, the Adjudicator said:[20]
What I don’t understand is, and what I’ve always said is, why can’t you talk amongst yourselves and resolve this? Because it’s going to go one way, and I can tell you, it will go one way. And the fact is someone’s going to lose outright, and someone’s going to get upset, and I just think, rather than having to drag yourselves back here…
[20]Transcript 8 September 2016 1-14, line 1.
On day two having decided to adjourn the matter so that the correctness of the applicant as a party and representation for the applicant could be dealt with, and after Mr Drysdale said that Mr Steer was unwilling to negotiate at all because he believed that he was in the right, the Adjudicator said to Mr Steer:[21]
Well, if you’re not prepared to negotiate, the only thing is to come back, but I’m going to adjourn it today. I’ll give you leave to amend, ask you to file the documentation, but Mr Steer, there’s always the chance that you’re not in the right, and someone finds against you. I mean, there’s always a give and take situation, and as you say, it’s costing you a lot of money to come here and now you’re going to have to come here for another afternoon.
[21]Transcript 8 September 2016 1-20, line 15.
Mr Steer replied to this that he respected what the Adjudicator was saying.
On day two, having given directions to substitute the correct applicant, and other directions to adjourn the matter the Adjudicator said:[22]
So everyone must bring all their witnesses here next time but, as I say, this is going to come down purely to a question of credit. On all occasions such as this when it is a credit argument there’s only one winner and there’s one loser. Always better to try and bang something out amongst yourselves because at least you can live with that better than you can live with a straight loss or win. But, anyway, as I say, it’s not up to me. You just have to understand the difficulties involved in these cases when they’re just solely credit – and that’s all this is going to be.
[22]Transcript 8 September 2016 1-30, line 3.
There is nothing in these remarks by the Adjudicator suggesting bias.
As for the Adjudicator being dismissive of what Mr Steer and his wife had to say, having read the transcripts throughout, this is not the case. Mrs Steer intervened on day two, but simply repeated what Mr Steer had said about the legal entity of the applicant being wrong, which turned out to be a good point although not a knock-out one, as Mr Steer had hoped.[23]
[23]Transcript 8 September 2016 1-10 line 9 onwards.
Mrs Steer did represent Steer Constructions on day three and I can see from the transcript that although the Adjudicator was content to start hearing the evidence, Mrs Steer requested that Tile Wizards opened its case, which the Adjudicator allowed.[24] The Adjudicator permitted Mrs Steer to present the case, ask questions of the witnesses, and nothing unusual happened or was said.
[24]Transcript 13 October 2016 1-3 to 1-13.
There is a passage in the transcript where Mrs Steer seemed to backtrack on what had been said by Mr Steer on day one that the issue was not to do with the quality of the installation work. In fact what happened was that when Mrs Steer tried to raise this issue, Mr Steer asked her not to and clearly stated again that the reason why the product was rejected was because it was the wrong colour and not because of installation defects.[25]
[25]Transcript 13 October 2016 1-50 to 1-52.
Prior to the Adjudicator’s decision Mr Steer stated that he was content with the way the matter had been dealt with. After the decision and having lost the case, he said that he wanted to appeal because the decision was “absurd” and he was making a complaint about the way the claim had been dealt with.
In these minor civil dispute appeals, leave to appeal is required for them to proceed to a full appeal. Leave to appeal will only be given if there is a reasonably arguable case on appeal. None of the grounds of appeal could succeed. In the circumstances leave to appeal is refused.
0
0
1