Swan v From Concept to Completion Designs Pty Ltd
[2012] QCATA 231
•22 November 2012
| CITATION: | Swan v From Concept to Completion Designs Pty Ltd [2012] QCATA 231 |
| PARTIES: | Lindsay Graham Swan (Applicant/Appellant) |
| v | |
| From Concept to Completion Designs Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL058-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 22 November 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal is refused. |
| CATCHWORDS: | Minor Civil Dispute – minor debt – where parties entered into a written contract – whether finding of fact that the respondent discharged its obligations under the contract was open on the evidence Interest – where contract provided for interest for non payment – whether recoverable Queensland Civil and Administrative Tribunal Act2009 |
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
Mr Swan is the owner of a block of land at Shepherd Street in Wynnum. In or about 2008 he had subdivided the land into 2 smaller lots. In November 2009 he had discussions with Mr Morrow-Woods of Concept to Completion Designs Pty Ltd (“C2C”) about relocating the existing house on the then double block onto a single block together with plans to renovate that house.
Sensibly, C2C and Mr Swan entered into an agreement titled “Sketch Fee Proposal” which set out the contractual obligations of both parties in the work to be undertaken by C2C. The document described what was to occur in the various stages of work to be undertaken by C2C and the amount of the design fee for the completion of stage 1 which was $1,650.00. All parties signed the contract on 4 November 2010. The description of work to be undertaken in stage 1 was “design and documenting services for renovation”.
After the contract was signed C2C prepared a sketch of the existing house which included measurements. Thereafter, in consultation with Mr Swan C2C prepared a number of sketch designs for the proposed development. Included in the material are five separate sketch designs with variations.
After the 5th sketch was prepared and given to Mr Swan, on 22 March 2010 C2C rendered an invoice for stage 1. Mr Swan had already paid $440.00 deposit on the signing of the contract.
On receiving the invoice, Mr Swan complained that C2C had not done all they were obliged to do under the contract. C2C’s request for payment of stage 1 was premature and Mr Swan insisted on a refund of the deposit paid.
Matters were at a stalemate and on 9 November 2011 Mr Swan commenced a proceeding in the minor civil disputes jurisdiction of the Tribunal claiming a refund of $440.00 and relief from paying the balance of C2C’s invoice for stage 1. C2C counterclaimed the amount of the outstanding invoice.
The matter came on for hearing before a Tribunal Member on 19 January 2012. After hearing from both parties, and considering the documentary evidence including the signed contract, the learned Member found that C2C had complied with its obligations under the contract, dismissed Mr Swan’s claim for a refund of the deposit and ordered that Mr Swan pay the balance of the invoice for stage 1 in the sum of $1,210.00. As the contract provided for interest[1], the learned Member allowed interest at 5% taking the total amount payable by Mr Swan to $2,420.00.
[1] Sketch fee proposal clause 4.
Subsequent to receiving that decision, Mr Swan filed an application for leave to appeal or appeal on 17 February 2012. Because this is an appeal from a decision in the minor civil disputes jurisdiction leave, or permission, to appeal is necessary.[2]
[2] QCAT Act, s142(3).
The question of whether leave to appeal will be granted is usually addressed according to established principles: is there a reasonably arguable case of error in the primary decision?[3] Is there a reasonable prospect that the applicant will obtain substantive relief?[4] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[5] 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?[6]
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4] Cachia v Grech [2009] NSWCA 232 at 2.
[5] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[6]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.
In the application for leave to appeal Mr Swan has set out his grounds of appeal which are that Mr Morrow-Woods' evidence was untrue and misleading in respect of designing the house narrower than requested; C2C did not comply with the terms of the contract “to finesse (refine; subtlety; artfully enhance)” the drawings that were given to him by Mr Swan; and finally, the learned Member, it is said, did not give consideration as to why a single sketch was received compared to the original drawings given to C2C.
Mr Swan also made reference to the documents put before the Tribunal at the time of the hearing and expressed concern about the difficulty in representing himself during the hearing. He says he felt that he was unfairly dealt with and treated as a dishonest person.
Not only do I have a copy of the documents that were put before the Tribunal Member including the sketch fee proposal, I also have a transcript of the evidence that was given by both parties at the hearing. Because the contractual relationship entered into between Mr Swan and C2C was contained in a signed written agreement, the learned Member, quite rightly, focused his attention on the obligations of both parties under that agreement to determine whether those obligations had been discharged. He carefully took evidence from both parties as to the circumstances of entering into the written agreement and what occurred after the agreement was signed. The factual evidence given at the hearing persuaded the learned Member that work had been done by C2C in terms of its obligations under the contract to prepare sketch plans.
Although Mr Swan complained that the plans did not take full advantage of the land frontage of 10.6 metres, Mr Morrow-Woods explained, and the Member accepted, that it would be a simple matter to enlarge the building envelope width wise, by 600mm without any extra cost. Despite this deficiency, Mr Swan accepted that the plans were drawn by C2C who contends they were not acceptable. He says there was still some changes to be made at the time the invoice was rendered.
The learned Member also considered Mr Swan’s concern that the preliminary soil tests and site survey were not undertaken by C2C. There are two things that can be said about that and the first is that there was no authority given by Mr Swan for C2C to carry out those tests which is evident when one looks at section 11 of the contract. It provides for specific authority to be given and no doubt, if it is given there will be an added cost to that. The second point on this topic is that there were preliminary discussions about that and because Mr Swan had undertaken the subdivision of the single lot his house is now sitting on into 2 separate lots, the main purpose of the design drawings was to determine whether or not a suitable design could be achieved on a single lot before going further to undertake preliminary investigations for the purposes of preparing final plans, and engineering detail.
The learned Member accepted Mr Morrow-Woods evidence on this point. In his reasons for the decision, the learned Member made findings about these issues and that preliminary design work had been carried out by C2C in that it had presented “extensive concept drawings including 3D renderings to the owner, Mr Swan”. He found that there was value for the work undertaken and that C2C was entitled to payment. When one has regard, independently, to the documentary evidence produced, there can be no fault in that finding.
The contract specifically provided for interest payment on outstanding amounts, this was agreed to by Mr Swan and once the Tribunal found that the money was due and owing, he was contractually obliged to pay the interest. Again there is no error demonstrated here.
In respect of Mr Swan’s complaint that he did not receive a fair hearing, or there was an implication of dishonesty, that contention is not made out when one has regard to the manner in which the hearing was conducted. He had ample opportunity to explain his position to the learned Member, was questioned about his complaints about the concept drawings, and given every opportunity to present his case. He did so by reference to documents and in a detailed written statement which was considered by the learned Member. I am satisfied that Mr Swan had every opportunity to present his case.
Mr Swan has been unable to identify any error on the part of the learned Member nor is any apparent. In the circumstances, leave to appeal must be refused.
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