Taylor t/as Solar Water Pumping v Cameron & Anor
[2014] QCATA 10
•23 January 2014
| CITATION: | Taylor t/as Solar Water Pumping v Cameron & Anor [2014] QCATA 010 |
| PARTIES: | Malcolm John Taylor t/as Solar Water Pumping (Appellant) |
| v | |
| Gail Dorothy Cameron Albert Cameron (Respondents) |
| APPLICATION NUMBER: | APL245-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President |
| DELIVERED ON: | 23 January 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Each party must file in the Tribunal and give to the other party any submissions as to whether: a. the learned Magistrate exceeded his jurisdiction, or otherwise erred in law, in ordering Mr Taylor to pay the sum of $15,200 which included an amount of $1,425 in respect of expert witness expenses; and b. Mr Taylor should now be allowed to advance such error as a ground of appeal, by 4:00pm on 14 February 2014. |
| CATCHWORDS: | APPEAL – MINOR CIVIL DISPUTE – where solar system installed – where there was an oral agreement – whether system complied with oral agreement – whether system defective – whether grounds for leave to appeal COSTS – where Magistrate awarded expert witness costs – whether costs awarded in the interests of justice - whether expert witness costs can be awarded in Minor Civil Disputes Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3(b), s 28(2), s 28(3)(a), Cachia v Grech [2009] NSWCA 232 |
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
Mr and Mrs Cameron wanted to install solar panels with battery storage on their rural property. They had discussions with Mr Taylor and he provided a number of quotes. Then Mr Taylor supplied and, with Mr Cameron’s help, installed the solar panel system. The system did not work so Mr and Mrs Cameron filed a claim in the Tribunal asking for a refund of the money they paid Mr Taylor. A Magistrate, sitting as an Ordinary Member of the Tribunal, ordered Mr Taylor pay Mr and Mrs Cameron $15,200 and to demolish the solar panel structure on Mr and Mrs Cameron’s land.
Because this is an appeal from a decision of the Tribunal in its Minor Civil Disputes jurisdiction, leave is necessary. 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?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the Appeals Tribunal, would be to the public advantage?[4]
[1]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2]Cachia v Grech [2009] NSWCA 232 at 2.
[3]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]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 his application for leave to appeal, Mr Taylor states the grounds for his appeal as:
1.If you are told of the defect at the time of purchase and you still buy the product then you have accepted the goods in that condition. Frame was accepted as is they supplied crane truck for unloading and positioning of frame cement and gravel for concrete to secure frame and cladding to enclose, also helped to concrete it in and cladding it. They were told about batteries and accepted them helping to unload and wire them.
2.Conflicting information received from Ray Paul/Technical Advisor Green Energy Council as per requirements for system to that given by Paul Edwards accredited by GEC witness for Camerons. Only information received from Ray Paul was regards wind loading for structure this was new exchange of emails as I no longer have ones from about 2 years ago emails available for viewing on request.
3.Warranty is not legally valid unless job is paid for in full it was not.
4.Which quote we were working on had been sorted during job and price agreed on.
None of these grounds raised by Mr Taylor in his application satisfy any of the recognised principles upon which leave to appeal may be granted.
The first ground seeks to raise an argument which Mr Taylor did not raise in defence of the claim before the learned Magistrate. He did not contend before the Magistrate that the Camerons had agreed to accept goods in the condition in which they had been delivered notwithstanding defects in those goods having been identified to them. It is well established that an appellate court, or tribunal, will not permit a point to be raised for the first time on an appeal.[5]
[5]Coulton v Holcombe (1986) 162 CLR 1 at 7.
Mr Taylor should not be granted leave to pursue this ground.
Mr Taylor’s second ground raises an issue upon which it would be necessary to adduce further evidence of what he says was information which he received which conflicted with the expert evidence called in the Camerons’ case before the learned Magistrate. That he had received conflicting information was alluded to by Mr Taylor in his submissions to the Magistrate.[6] Evidence of any conflicting information which he had received could have been adduced by Mr Taylor in the proceedings before the Magistrate. It did not matter that the original emails which he had received containing that information were no longer in his possession. He may have obtained copies of them from the person or persons who sent them. He might otherwise have called those persons to give the evidence of the information which they contained if it was intended to establish that the opinion expressed by the expert witness called by the Camerons was incorrect. Mr Taylor was specifically asked by the learned Magistrate if he was calling any expert evidence. Mr Taylor informed the Magistrate that he was not.[7]
[6]Transcript page 1-36, lines 9-11.
[7]Transcript page 1-27, lines 39-47.
An appeal is not to be used as an opportunity to adduce further evidence which could have been called at the time of the original hearing. Mr Taylor should not be given leave to pursue this ground.
There is no substance to the third ground of appeal. The judgment given against Mr Taylor was not based on any warranty which may have been vitiated by any alleged failure by the Camerons to have paid the full price for the goods. Leave should not be granted to pursue that ground.
Whilst the fourth ground is not stated with clarity, it appears from the statement of Mr Taylor filed on 4 July 2013[8] that this ground also relates to Mr Taylor’s allegation that the Camerons had not paid the full price of $15,378 set out in the quote of 26 April 2012. Mr Taylor contends that the work was incomplete because full payment had not been made.
[8]The ‘statement’ was filed pursuant to the Tribunal’s direction that Mr Taylor file any submissions in support of his appeal by 22 July 2013.
The learned Magistrate found that of the three quotes provided by Mr Taylor, the relevant quote was that dated 26 April 2012. The Magistrate found that this was the relevant quote because it was the only one which related to the supply of a 3 kilowatt power system; each of the other quotes having provided for the supply of a 1.5 kilowatt system. It was a 3 kilowatt system which was supplied.
Before the Magistrate Mr Taylor’s evidence had been that the quote of 26 April 2012 had been a draft quote which was originally provided to the Camerons by mistake,[9] but which he and the Camerons had later agreed upon, after some discussion, as being the relevant quote.[10]
[9]Transcript page 1-16, lines 35-44.
[10]Transcript page 1-18, line 42 to 1-19, line 7.
The essence of Mr Taylor’s contention in respect of ground four is that the learned Magistrate failed to consider that some of the payment remained outstanding and that this explained why the installation of the system was incomplete.
It is apparent from the learned Magistrate’s reasons that he did take into consideration that the $13,500 paid by the Camerons was only ‘part payment for what was due and owing’. He expressly referred to it as such.[11]
[11]Transcript page 1-41, lines 28-30. It is to be noted that the Camerons had asserted that they had paid only $13,500 because Mr Taylor had said that he would drop the GST if he was paid in cash: Transcript page 1-7, lines 35-38.
His Honour found, however, that ‘the consumers did not get what was paid for’.[12] He was satisfied that ‘the workmanship and the provisions of and satisfaction of fundamental terms of the agreement were not met by the respondent’.[13]
[12]Transcript page 1-41, line 28.
[13]Transcript page 1-41, lines 31-34.
Those conclusions were entirely open on the evidence, particularly the expert evidence of Mr Edwards which, as his Honour observed, was uncontested. In accordance with that evidence he found that the installation was one which clearly did not meet Australian Standards. He accepted the expert’s evidence that in order for the system to fully comply with all relevant standards it would need either to be replaced or rebuilt. The learned Magistrate detailed the evidence of the aspects of non-compliance which he accepted.[14]
[14]Transcript page 1-40, line 25 to page 1-41, line 10.
The Magistrate found,[15] on the basis of Mr Taylor’s own submissions,[16] that Mr Taylor was not aware of the mandatory requirements.
[15]Transcript page 1-41, lines 5-7.
[16]Transcript page 1-36, lines 7-9.
The learned Magistrate’s findings, entirely open on the evidence, as to the extent of the deficiency of what had been supplied by Mr Taylor in meeting the terms of the agreement preclude any error in the decision as asserted in ground four. Leave should not be granted to pursue it.
I would refuse leave to appeal on each of the grounds raised by Mr Taylor in his application. There is in respect of those grounds no question of general importance that should be determined by the Appeals Tribunal. There is no reasonably arguable case that the learned Magistrate was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted.
Beyond the four grounds in Mr Taylor’s application for leave to appeal, he also complains in his submissions that he was denied natural justice in the hearing before the Magistrate. I have read the record of the proceedings. The allegation is without merit. The Magistrate conducted the proceedings in an entirely fair manner.
A further issue
There is a further issue which arises upon a consideration of the learned Magistrate having understood that the payment by the Camerons of $13,500 was only in part payment.
His Honour ordered that Mr Taylor pay the Camerons the sum of $15,200. It is apparent from an examination of the record and His Honour’s reasons that this sum comprised the $13,500 paid by the Camerons; the filing fee of the application of $275 paid by the Camerons to the Tribunal; and $1,425 in relation to the experts evidence.[17] That latter amount comprised $675 paid for the experts report and five hours attendance to give evidence at the rate of $150 per hour.[18]
[17]Transcript page 1-39, lines 20-23.
[18]Transcript page 1-12, lines 2-8.
Whilst not raised by Mr Taylor as a ground of appeal, and not addressed in his statement or submissions filed in accordance with the Appeal Tribunal directions, in correspondence to the Tribunal dated 22 November 2013 he did raise that the amount allowed by the Magistrate of $150 per hour for the expert witness to attend the hearing exceeded that which was allowable under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
It is correct that by operation of s 97 of the QCAT Act and s 12 of the Queensland Civil and Administrative Tribunal Regulation 2009 (Qld) that the amounts payable to an expert witness are limited; and less than that allowed by the learned Magistrate. However, there are two more fundamental issues which, although not raised by Mr Taylor, suggest that the order made by the Magistrate which included an allowance for witness expenses was beyond jurisdiction.
First, the entitlement of a witness to be paid fees and allowances created by s 97(3) of the QCAT Act is conferred upon persons given a written notice by the Tribunal under s 97(1) requiring that person to attend the hearing. It does not appear that any such notice was issued in this case.
The circumstances of how the expert witness became involved in this case were referred to by Mrs Cameron in her evidence.[19] It appears that at an earlier hearing of the matter another Magistrate had indicated the need for the applicants to have some expert evidence in support of their case and that, as a consequence of that indication, they engaged Mr Edwards. However, it does not appear that any notice was issued under s 97(1) in respect of his attendance. In any event, the entitlement to fees and allowances under s 97(3) does not extend to the $675 paid in respect of his report.
[19]Transcript page 1-11, line 42 to page 1-12, line 8.
Secondly, the amount allowed by the learned Magistrate in respect of the expert witness would not appear to be allowable as costs. Section 102(2) of the QCAT Act limits the costs which may be awarded against a party to a proceeding to a Minor Civil Dispute, which this was, to those stated in the Rules. Rule 83 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) limits those costs to the amount of any prescribed fee paid by the applicant on filing of the application. The $275 filing fee was therefore allowable under that section; but the $1,425 for the expert witness was not.
Whilst this issue has not been, directly, raised by Mr Taylor, it has come to the Appeal Tribunal’s attention because it was required to consider how the amount of $15,200 ordered to be paid was comprised. It having come to the Appeal Tribunal’s attention in this way, it should, in my view, be addressed.
It is an object of the QCAT Act that the Tribunal deal with matters in a way which is accessible, fair, just, economical, informal and quick: s 3(b).
Section 28(2) of the QCAT Act requires the Tribunal, in all proceedings, to act fairly and according to the substantial merits of the case. By s 28(3)(d) the Tribunal must act with as little formality and technicality that, amongst other things, a proper consideration of the matters before the Tribunal permit. It must, of course, observe the rules of natural justice: s 28(3)(a).
In my view, it would be in accordance with all of those principles, objects and requirements for the Appeal Tribunal to seek further submissions from the parties as to whether the learned Magistrate exceeded his jurisdiction, or otherwise erred in law, in ordering Mr Taylor to pay the sum of $15,200 which included an amount of $1,425 in respect of expert witness expenses; and as to whether Mr Taylor should now be allowed to advance such error as a ground of appeal.
I will direct that the parties file in the Tribunal and give to each other any submissions which they wish to make on these issues by 4:00 pm on Friday 14 February 2014.
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