Warren-Smith v Eurospace Pty Ltd

[2012] QCATA 144

CITATION: Warren-Smith v Eurospace Pty Ltd [2012] QCATA 144

PARTIES:	Vicki Warren-Smith (Applicant/Appellant)
v
Eurospace Pty Ltd (Respondent)

APPLICATION NUMBER: APL064-12

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON: 17 August 2012

DELIVERED AT: Brisbane

ORDERS MADE: 1. Leave to appeal is refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – debt relating to domestic building work – where tribunal preferred evidence of one party over another – tribunal not required to advise parties what evidence they should present – no error of fact – contract not void because not in writing

Queensland Civil and Administrative Tribunal Act 2009, ss 3(b), 13(1), 29
Domestic Building Contracts Act 2000, ss 26, 92

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

1. Eurospace Pty Ltd manufactures and installs kitchens.  It installed one in Ms Warren-Smith’s premises in 2011.  Then, as Mr Abbott, a Director of Eurospace claimed, Ms Warren-Smith asked him to undertake some other work around the premises which the company performed in April and May 2011 for which, Mr Abbott then alleged, Ms Warren-Smith wrongly refused to pay.

2. Eurospace brought proceedings in QCAT’s Minor Civil Disputes jurisdiction against Ms Warren-Smith and the matter was heard and determined by a Magistrate, sitting as a QCAT Member, on 1 February 2012.  After hearing evidence from both Mr Abbott and Ms Warren-Smith, and considering some documents, the learned Magistrate ordered that she pay Eurospace the sum of $2,187.25 for the claim plus endorsed cost of $201.50.

3. Ms Warren-Smith seeks leave to appeal that decision.  Leave is necessary before the appeal can be considered (QCAT Act, s 142(3)(a)(i)).  The question whether or not leave should be granted is usually addressed according to established principles: is there a reasonably arguable case of error in the primary decision?  Is there a reasonable prospect the applicant will obtain sub-standard relief?  Is leave necessary to correct a substantial injustice to the applicant, caused by some error?  Is there a question of general importance upon which further argument, and the decision of the Appeal Tribunal, would be to the public advantage?

4. Under an earlier order, it was directed that Ms Warren-Smith’s application for leave to appeal (and her appeal, if leave is granted) would be determined on the papers by written submissions from the parties and without an oral hearing.  Both parties have filed and exchanged their submissions.

5. Ms Warren-Smith’s submissions do not address any of the matters of general principle outlined above.  She has filed a wealth of material which, it appears, involve assertions that the learned Magistrate was wrong to prefer the evidence of Mr Abbott, to what she said; that Eurospace was in breach of relevant statutory provisions because it failed to provide a quote or preliminary invoice for the work she asked it to perform; and, that according to quotations she has now obtained (but did not present to the learned Magistrate) its charges were too high.

6. The learned Magistrate heard evidence from both parties.  Early in the hearing he asked Ms Warren-Smith whether she intended to call any witnesses and, if so, whether she wanted to seek an adjournment.  She said she did not know what she might need in terms of evidence but, upon being asked by the Magistrate whether or not she wished to proceed, indicated that she wanted to do so.

7. That exchange disposes of a third of her complaints: if she wished to assert, at the hearing, that Eurospace’s charges were excessive and unreasonable she might have sought an adjournment to obtain her own quotations for the work it performed – as she has now done.  The learned Magistrate would have been entitled, however, to refuse that adjournment: any party to a dispute of this kind who is unwilling to pay the amount claimed, and alleges that it is excessive, may reasonably be expected to prepare for the hearing by obtaining evidence to support a case on those lines, and anticipate the need to do so, if they seriously intend to challenge the amount of the claim.

8. Although s 29 of the QCAT Act places an obligation upon the Tribunal to ensure that parties in proceedings before it understand the nature of assertions made in the proceedings and the legal implications of them, that obligation does not extend to a requirement that a warning be given to a party, before a hearing, about the evidence that they should present. Ms Warren-Smith is shown, in the transcript, to have conducted her case with appropriate vigour, and there is nothing to suggest she is suffering any disability or handicap that might have prevented her from taking a simple and practical step, on her own initiative, before the hearing.

9. The learned Magistrate explained his decision in oral Reasons delivered at the end of the hearing.  In short, he accepted Mr Abbott’s evidence that Mr Warren-Smith had asked him to perform some additional work around the home (described as “bits and pieces”); that she was not certain about the precise nature of the work she wanted done; that he told her he would undertake the work at a cost of $55.00 per hour; and, that he had obtained materials and performed work at the hourly rate which substantiated his later invoice.

10. Ms Warren-Smith denied an agreement with Eurospace, via Mr Abbott, to do the work at $55.00 an hour and asserted that he had failed to give an itemised account or an invoice “in the early stages”.

11. The learned Magistrate was therefore obliged, as he said in his Reasons, to decide between conflicting evidence.  He explained in the Reasons that he preferred Mr Abbott’s evidence because of the contents of an email from Ms Warren-Smith to him dated 30 May 2011 in which she told him she had deposited $1,000.00 in Eurospace’s bank account for “part payment of the invoice”.  The learned Magistrate went on to say:

    She’s not saying in that discussion that she’s paying $1,000.00 in satisfaction of the claim or invoice.  It is a part payment so from that I accept that there is a suggestion that she owes money after paying the $1,000.00 in respect of that invoice.

12. QCAT Adjudicators and Magistrates sitting as QCAT Members in this jurisdiction are required to resolve disputes quickly and economically,[1] and make orders that are fair and equitable to the parties in order to resolve the dispute.[2]  Subject to justice and reason, the finality of the primary decision is consistent with those aims.

    [1]        Queensland Civil and Administrative Tribunal Act 2009, s 3(b).

    [2]        Queensland Civil and Administrative Tribunal Act 2009, s 13(1).

13. Findings of fact – here, a finding that the evidence of Mr Abbott should be preferred to that of Ms Warren-Smith – will not usually be disturbed on appeal if the findings have a rational basis of support within the evidence.  The learned Magistrate found, he said, such a rational basis in the document mentioned above.  There was, the transcript also shows, evidence which was accepted by the Magistrate to support the crucial finding he made about the factual dispute between the parties.  In light of the evidence presented to him, the finding he made was reasonably open and available, and had rational support.  There is nothing, then, to suggest any basis for interfering with the decision in that respect.

14. Ms Warren-Smith’s final complaint is that Mr Abbott and Eurospace failed to comply with the Domestic Building Contracts Act 2000 by failing to ensure, as s 26 of that Act requires, that his agreement with her was in written form, at least before he undertook any work. That appears to be the case, and it also appears from the material that he or Eurospace may have been fined for that non-compliance. Under s 92 of that Act, however, a failure of that kind does not make the contract illegal, void or unenforceable.

15. The matter was not argued or addressed during the hearing in those terms although Ms Warren-Smith did give evidence (and it appears to be uncontested) that there was no written contract of any kind before Eurospace undertook the work.  Even if the argument had been raised, however, the learned Magistrate would have been entitled to proceed to determine whether or not Eurospace actually performed the work and was entitled to claim for it.  That is, in fact, exactly what happened in the proceedings.

16. It follows that no basis for a grant of leave to appeal has been established, and the application for leave must be refused.