Veljkovic v O'Callaghan

[2011] QCATA 36

CITATION: Veljkovic v O’Callaghan [2011] QCATA 36

PARTIES:	Mr Slobodan Veljkovic (Applicant/Appellant)
v
Ms Leslie Barbara O’Callaghan (Respondent)

APPLICATION NUMBER: APL340-10

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT:  Brisbane

DECISION OF: Richard Oliver, Senior Member

DELIVERED ON: 28 February 2011

DELIVERED AT: Brisbane

ORDERS MADE: Leave to appeal is refused.

CATCHWORDS:

Minor Civil Dispute – findings of fact – no basis to interfere as no error identified

Queensland Civil and Administrative Tribunal Act 2009, s 12(3)

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
Cachia v Grech [2009] NSWCA 232

Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
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

1. In November 2007 Ms O’Callaghan entered into a contract with the applicant to paint her 3 bedroom townhouse at Trevally Crescent, Manly West for $4,975.  According to Ms O’Callaghan the painting job was so unsatisfactory, that the townhouse has to be repainted.  She made a claim against Mr Veljkovic in the minor civil disputes jurisdiction of the Tribunal and as a consequence of a hearing conducted on 28 October 2010 the Tribunal ordered that the Mr Veljkovic pay to Ms O’Callaghan the sum of $3,500.

1. The transcript of evidence reveals that an independent licensed painter, Mr Ball, inspected the painting job and concluded that the job was of a poor standard and not painted in a tradesmenlike manner.  Mr Ball provided particulars of the defective work in his statutory declaration.

1. The Tribunal Member who conducted the hearing took evidence from Ms O’Callaghan and Mr Veljkovic.  It was conceded by the applicant that the work was substandard and of the total price, he was prepared to concede that rectification would cost about $1,000.  The learned Tribunal Member took that into account but made a finding of fact that the job did require repainting at a cost of $3,500 and made an order accordingly.

1. Then, on 2 December 2010, the applicant filed an application for leave to appeal or appeal.[1]  The grounds of appeal simply assert that the damages as assessed by the Tribunal Member are excessive and should be reduced to what Mr Veljkovic considers to be more reasonable, presumably $1,000 to undertake rectification work.

[1] Leave is necessary: QCAT Act s 142(3).

1. For the Tribunal to give leave to appeal, Mr Veljkovic must identify some error on the part of the Tribunal Member.  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?[2]  Is there a reasonable prospect that the applicant will obtain substantive relief?[3]  Is leave necessary to correct a substantial injustice to the applicant caused by some error?[4]  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?[5]

[2]        QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

[3]        Cachia v Grech [2009] NSWCA 232 at [13].

[4]        QUYD Pty Ltd v Marvass Pty Ltd (supra).

[5]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.

1. Here, the Tribunal Member made an assessment on the evidence before him including the fact that Ms O’Callaghan had 3 quotes to repaint the unit, the lowest of which was $3,500.  Balanced against that, he had to make a judgment as to whether or not to award damages on the basis of a repaint, or on rectification as contended for by Mr Veljkovic of $1,000.  He carefully considered those options and concluded that the appropriate level of damages was $3,500 contended for by Ms O’Callaghan.  That conclusion was clearly open on the evidence before him.  The evidence before the Tribunal clearly supports the finding of fact made.  The submissions made by Mr Veljkovic, not the evidence before the Tribunal, do not identify any error on the part of the Tribunal member to warrant interference with the finding of fact made, nor is any error apparent.

1. Therefore, in the circumstances leave to appeal is refused.