Thomas v Hahnon - [2018] QCATA 35

CITATION:

Thomas v Hahnon [2018] QCATA 35

PARTIES:	GEOFF THOMAS (Applicant/Appellant)
v
PAUL DAMIEN HAHNON (Respondent)
APPLICATION NUMBER:		APL318-16

MATTER TYPE:

Application and Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Carmody

DELIVERED ON:

9 March 2018

DELIVERED AT:

Brisbane

ORDERS MADE:

THE APPEAL TRIBUNAL ORDERS THAT:

1. The application for leave to appeal or appeal is refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – where the applicant installed a standalone residential solar system for the respondent – where the respondent claimed that rectification work was required to have the system certified – whether the applicant was afforded procedural fairness – whether the tribunal’s order was correct – whether leave to appeal is justified

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 13(1), 28(2)

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers without the attendance of either party in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

The parties’ dispute is over a residential solar system the applicant installed for the respondent.
On the respondent’s case the applicant misstated his qualifications, overcharged and installed an unsafe system that an electrician had to be paid more than $780 to bring up to scratch, and more specifically:
·did not provide a certificate of compliance, a tax invoice, or receipt;
·was not qualified to perform the installation and the respondent’s insurer would not accept a claim related to his work;
·was using an installer accreditation that expired in 2009;
·misleadingly said that $800 grant money was available when it was in fact $2346;
·the isolator switches the applicant used were inadequate and presented a fire hazard and therefore needed to be replaced;
·the cable used was unnecessarily thick (at 6mm) and the replacement 4mm cable was significantly less expensive ($125) compared to what the applicant charged ($500).
He also says he had to “re-orientate” the panels on the roof himself which took 6 hours.
The applicant claims, in response, that he was engaged to build a (non-certified) free standing system but after later changing his mind about claiming government grant money the respondent hired an electrician to perform extra work (which the applicant did not agree to and could not legally perform) to bring the system up to standard and is trying to get him to pay for it under the guise of a defect claim.
The tribunal did not accept all amounts claimed by the respondent and limited the order to defective work and parts that probably would have needed fixing regardless of whether the system installation was connected to the house or met certification standards.
It made a final order requiring the applicant to pay $781.70 (including filing costs) to the respondent by $40 monthly instalments[1] for rectifications consisting of:
·500 volt DC breakers - $110;
·Battery cable and lugs - $52;
·Conduit, fittings, saddle, etc. - $82 (to be split);
·Labour (1 man 4 hours) - $320;
·The six millimetre cable - $150;
·Filing costs - $108.70.
[1]T1-32:15-35.
The tribunal also ordered that some isolator switches and half of the remaining 6mm cabling be returned to the applicant.
The application for leave to appeal was reopened late last year after initially being refused in default of the applicant’s appearance.
The parties’ arguments
The alleged errors the tribunal made are identified in the application as:
·ground 1 – procedural unfairness – the respondent submitted a document at the hearing without first giving the applicant a copy;
·ground 2 – error of law – the decision was not based on any “legal connection” and the result invalidates commercial activity in Australia;
·ground 3 – error of fact – the tribunal included an item in the order that should not have been;
·ground 4 – procedural unfairness – the applicant was not given the opportunity to speak and the court was suddenly closed.
The leave discretion
The applicant must demonstrate that the tribunal at least arguably made errors of law or fact and substantial injustice will result if left uncorrected.
Ground 1
The applicant claims that he was denied procedural fairness at the hearing because the respondent submitted a copy of a solar grant form on the day. He claims, in effect, that the document was irrelevant because the respondent was not initially interested in applying for a government subsidy.[2] He says he did read the document but there is no evidence that he raised any admissibility or weight issue at the hearing. He had the opportunity to read and object to the tender of the document but chose not to take advantage of it.
[2]T1-20:5.
He nonetheless answered the respondent’s claim. When asked if the parties had anything more to say before a decision was made, the applicant replied: “(w)ell, I guess you’ve read all my letters so I can’t think of anything just at the moment, sorry”.[3]
[3]T1-31:25.
The only inference is that he had no complaint about the adequacy of his chance to prepare or present his case. Even if the applicant could or should have been given the document sooner there is no sign of injustice or prejudice. The tribunal’s reasoning did not turn on whether or not the respondent had the intention to apply for a government grant. No error of law or substantial unfairness is demonstrated.
Ground 2
The claim that the tribunal made an error of law in making a decision that invalidates commercial activity in Australia cannot be accepted. The tribunal had to make a “fair and equitable” [4] decision, on the balance of probabilities, according to the evidence and the substantial merits of the case.[5] Any adverse effect on commercial activity in Australia is immaterial if the decision is unaffected by appellable error.
[4]QCAT Act s 13(1).
[5]QCAT Act s 28(2).
Ground 3
The applicant says that the 6mm cable should not have been included in the order because the decision to replace it with 4mm cabling was at the discretion of the electrician who performed rectification work.
The applicant initially recommended 6mm cabling to the respondent and claimed that it could only be purchased in 100m lots, at a cost of $5 per metre, or $500.
The tribunal differentiated between the items on the electrician’s bill (Solarworks Invoice #627483) related to connecting the unit to the house and rectifying the work that was done installing the standalone unit.[6] This process of elimination relied on the input of both the respondent and the applicant. In the end, the applicant remarked: “I don’t really dispute your reasoning … as you said, you’ve got to make a decision” before raising the issue of a payment plan in consideration of his pensioner status.[7]
[6]T1-13:15-20.
[7]T1-32:45.
The tribunal arrived at the $150 figure by deducting the amount the applicant used in the initial installation (around 15 metres) and the amount of replacement 4mm cable the electrician used (around 20 metres). That calculation left around 60m of cabling, or $300, which the tribunal then halved. Half of the cabling was then ordered to be returned to the applicant. The amount of cabling attributed to the electrician was not included in the order and the order stands.
Ground 4
An addendum to the monetary order at the end of hearing was that part of the excess cabling and switches be returned to the applicant. This was “fair and equitable” and meant that overall the applicant was less worse off than he otherwise would have been. Simply because this part of the hearing was finished much more quickly than the balance of the proceeding does not mean any injustice resulted.
Leave to appeal is not justified on any proposed ground. The application is, therefore, refused.