Tam v Andrews
[2010] QCATA 126
•18 February 2010
| CITATION: | Tam v Andrews [2010] QCATA 126 |
| PARTIES: | Mr Carlo Tam (Applicant/Appellant) |
| v | |
| Mr Matthew Andrews & Mr Craig Andrews (Respondents) |
APPLICATION NUMBER: APL103-10
| MATTER TYPE: | Appeals |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Richard Oliver, Senior Member |
DELIVERED ON: 18 February 2010
DELIVERED AT: Brisbane
ORDERS MADE: Leave to appeal refused.
| CATCHWORDS : | Minor Civil Dispute – findings as to credit – where no error identified in the primary decision – where applicant sought to lead fresh evidence – no explanation as to why the evidence was not available at the primary hearing. Queensland Civil and Administrative Tribunal Act 2009, section 143(2) QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Matthew and Craig Andrews are brothers and carry on business as fencing contractors under the business name of Andrews Brothers Contracting.
Mr Tam owns a small rural property at 528 Brisbane Valley Highway via Fernvale.
In June 2009 the respondents provided quotations to Mr Tam for fencing work to be carried out at his property. After some discussion, the quotes were accepted by Mr Tam and work was carried out. The total cost of the job was $19,589 which included the initial quote of $14,308 plus extras of $5,281.[1]
[1] The extras are particularised in the respondents invoice number 43.
On being presented with invoice number 43, for the sum of $5,281, Mr Tam objected to paying and as a consequence, the Andrews’ filed a minor debt claim in the Magistrates Court at Ipswich claiming that sum. Mr Tam defended the claim on the basis that there was no authorisation for the alleged extra work carried out.
The hearing came on before an Adjudicator on 12 May 2010 where both Matthew Andrews and Craig Andrews gave evidence concerning the claim and the work carried out by them. Mr Tam also gave evidence before the learned Adjudicator as to why the amount claimed was not owing.
The particulars of invoice number 43 were discussed during the course of the hearing and the learned Adjudicator accepted that each of the items claimed was recoverable not only because the respondents had in fact carried out the work in addition to that set out in the quotation, Mr Tam, or his son received the benefit of that work. In addition, he accepted that the upgrade to a better quality netting for the fence was also recoverable as a variation to the original agreement. The learned Adjudicator was not satisfied that all of the sum was recoverable and said this, when giving his reasons:-
“Now, in this matter, which is 70007 of ’09 between Andrews Brothers Contracting and Mr Carlo Tam, in this matter I’ve heard evidence from both parties with respect to a quote which was given on 24.6.09. It was accepted by the payment of a deposit on 25.6.09 and an account for extras was given on 14.10.09.
In this matter I accept that there should be extra charges with respect to the new gate which was described as being on the son’s property. I accept that there must be extra charges with respect to the Waratah netting, and I further find that there should be extra charges with respect to the tractor hire.
Now, there has been default on the contractors’ part. The contractors are professionals in this relationship and should be the ones who take responsibility for having variations put in writing. If they had, we would not have been here.
Now, with respect to the assembly which moved the gate into the centre of the road, I find it’s a reasonable expectation that when that isn’t mentioned, that the gate should go in the centre. Otherwise, it should be stated, he’s entitled to expect that he would have got that within the quote, so I’m not giving you judgment with respect to that matter.
That leaves judgment in this matter for the Plaintiffs by the Respondent in the sum of $5,111.50.”
On 8 June 2010 Mr Tam filed an application for leave to appeal or appeal. The grounds of appeal state as follows:-
- “Since having a default order (Q1310/09) in favour to me I let go their tactic lies during the Tribunal but now set aside for hearing on (16th June 2010).
- New evidence as attached and more to come
- Cannot pick up the colloquial conversation in the hearing”
The application then seeks orders that the Tribunal set aside the decision of the learned Adjudicator. The application also makes a claim for compensation. Clearly Mr Tam, although he does make some complaint about language barriers, fails to appreciate the nature of the appeal process. Firstly, as this is an appeal from a minor civil dispute leave is necessary[2].
[2] QCAT Act section 143(2).
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?[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 [13].
[5] QUYD Pty Ltd v Marvass Pty Ltd (supra).
[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.
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 reasonable prospect of 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?
In accordance with these principles the transcript of the proceeding before the learned Adjudicator does not demonstrate any error. The evidence of the respondents was preferred by the Adjudicator and was supported by documentary evidence. It was not contended by Mr Tam that the work was not done. The initial quote specifies what was to be included and the further invoice, in conjunction with the evidence of the respondents supports the findings made by him.
Mr Tam also seeks to rely on new evidence however, there is nothing in his submissions, or in the transcript to suggest that this evidence was not reasonably available to him at the time of the hearing before the learned Adjudicator. New evidence will ordinarily be allowed if: it could not have been obtained with reasonable diligence at the time of trial; had the evidence been given, it would have had an important influence on the result (although it need not be decisive); then the evidence is apparently credible, although not necessarily incontrovertible[7]. Once again the learned Adjudicator made a decision on the known facts, as he was obliged to do and in the absence of any identifiable error, there is no basis to grant leave to appeal.
[7] Clark v Japan Machines (Australia) Pty Ltd (1984) 1 QDR 4040408.
What Mr Tam is seeking to do, through the appeal process, is to re-litigate all of the matters that were before the learned Adjudicator.
The conclusions reached by the learned Adjudicator were open on the evidence before him and nothing, in the application for leave to appeal, or the submissions filed by Mr Tam identified any error on his part.
It is a case where Mr Tam has a different version of events to that of the Andrews Brothers but it is not my role, in considering this application for leave to appeal to decide where the truth lay as between competing versions given by the parties[8].
[8] Fox v Percy (2003) HCA 22 at page 32.
I have come to the conclusion that no error on the part of the Adjudicator has been identified and therefore leave to appeal should be refused.
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