Whitehead v Young
[2012] QCATA 223
•9 November 2012
| CITATION: | Whitehead and Anor v Young and Ors [2012] QCATA 223 |
| PARTIES: | Simon Whitehead Helen Naylor |
| v | |
| Terrance George Young Bruce Robert Trounce t/as All Safe Roof Sealers BJF Constructions Pty Ltd |
| APPLICATION NUMBER: | APL383-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member Barry Cotterell, Member |
| DELIVERED ON: | 9 November 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | is granted but the appeal is dismissed.on one point Leave to appeal 1. 2. The application by Simon Whitehead and Helen Naylor for their costs of the Appeal is dismissed. 3. The name of the Third Respondent is changed to BJF Constructions Pty Ltd. 4. The decision of 12 September 2011 is altered to: the Applicants are to pay to BJF Constructions Pty Ltd the sum of $1,975.00 within 7 days. |
| CATCHWORDS: | CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS PERFORMANCE OF WORK – where Appellants brought a claim for relief from payment including of a judgment in the Magistrates Court – where the Appellants brought a claim for damages for rectification – where the Tribunal dismissed Appellants’ claims but failed to expose a clear basis for the decision Appellants carrying out building work – deny being Owner Builder – Dispute as to who responsible for work – liability for roof defects – Owners or contracted tradesmen liable Dispute as to who Appellants orally contracted with and for what – allegation of defective works and of underlying existing roof defects Responsibilities of Owner Builder as head or principal contractor – owner-builder work and "carry out" in relation to owner-builder work Domestic Building Contracts Act 2000, ss 7, 26, 27 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
Richard Oliver, Senior Member
I have had the advantage of reading the reasons of Mr Cotterell in draft. I agree with them and with the conclusions he has reached and the orders he proposes.
Barry Cotterell, Member
This matter was heard originally over three days and the Tribunal provided the parties with a decision of 51 pages contained in 204 paragraphs.
Prior to the original application to the Tribunal, Mr Young had sought and obtained a judgement in the Magistrates Court on 14 May 2010 against Helen Naylor (Ms Naylor) in the sum of $12,512.56. This was referred to as a default judgement but it was made by adjudication and Mr Young paid the entire cost of the adjudication in order to obtain the decision when Ms Naylor refused to pay half the cost. The Appeal Tribunal assumes that this is why it was referred to as a “default judgement”.
The Appeal Tribunal notes that the Appellants paid $14,148.81 into the Magistrates Court on 13 October 2010. This amount consisted of the judgement amount of $10,680, default judgement costs of $1,636.23, interest to 13 October of $471.31, and 75% of the adjudication fee amounting to $1,361.25. In the original application, the Appellants claimed the return of 100% of the adjudication fee despite only having paid 75%. This claim for the extra 25% was clearly unsustainable which the original Tribunal found to be the case. This was not an error.
The original application in the Tribunal was brought by Ms Naylor and Simon Whithead (Mr Whitehead) against Terrance George Young (Mr Young) as First Respondent, Bruce Robert Trounce t/as All Safe Roof Sealers as Second Respondent and Bryce John Ferguson as Third Respondent.
The Applicants’ actually contracted with Mr Ferguson’s company, BJF Constructions Pty Ltd (BJF), so the application should have named BJF and the judgement should also have awarded the damages to BJF. In this regard the Appeal Tribunal notes that the counter application by Mr Ferguson simply refers to BJF Constructions and omits “Pty Ltd”. The name of the Third Respondent needs to be corrected by this Appeal Tribunal.
The Applicants in the original Tribunal hearing sought relief and orders that included:
a. relief from payment of $14,345.12 or any other sum to the First and or Second Respondents;
b. relief from payment of $2,000 or any other sum to the Third Respondent;
c. the First and Second Respondent pay to the Applicants damages in the sum of $20,437.96 or such other sum assessed by the Tribunal; and
d. the First and Second and or Third Respondents pay the Applicants‘ costs of and incidental to the Application, to be agreed or failing agreement to be fixed by the Tribunal.
The original Tribunal, “after considering all of the evidence of the parties, their witnesses and having carefully considered the content of the voluminous exhibits provided to the tribunal and for the reasons set out” dismissed the application and in relation to the counter-application of BJF Constructions ordered that the Applicants pay BJF the sum of $1,975 within 7 days.
The Appellants (Mr Whitehead and Ms Naylor) appealed this decision and in support provided the Appeal Tribunal with submissions on the following topics:
a. Unlicensed contracting
b. Finding Applicants (Appellants) as Owner Builder
c. Claim Contract never discussed
d. Claim refund of Adjudication fee is without merit
e. Structural Engineer
f. Decision Paras 172 and 174
g. Decision para 178
h. Relationship of respondents and batten sizing
In addition to submissions on these topics the Appellants then referred to 22 paragraphs from the decision and made comments in regard to them. They then go on to say by way of a summary “Given that 22 major findings of the member go against the weight of evidence, the cumulative effect of correcting these errors and technical misconceptions may have led the member to a different conclusion.”
Mr Whitehead and Ms Naylor raise a significant number of issues where they say there was appellable error but state that they have “limited legal knowledge and resources”. This may explain why they fail in their appeal documents to identify where they allege that the Tribunal has made an error of law or of fact or an error of mixed fact and law.
Where they allege that the Tribunal has made an error of fact or an error of mixed fact and law, they require the Tribunal’s leave before their appeal can proceed. It is only on an error of law that they can proceed with their appeal without leave.
While they raise a significant number of issues where they say there was appellable error, they have left it to this Appeal Tribunal to determine if there are any errors of law and to determine which, if any, are errors of fact or errors of mixed fact and law.
The Appeal Tribunal, therefore, will examine, what was sought in the original Tribunal application and the decision of and the reasons of the original Tribunal for those decisions.
Relief from the earlier Magistrates Court/Arbitration judgement
The original Tribunal dismissed the whole of the application but did not give specific reasons for rejecting the application for relief from payment of $14,345.12 or any other sum to the First and or Second Respondents. This was an error of law.
While the judgment was for $12,512.56 and not $14,345.12, the Applicants were seeking relief from having to pay the Magistrates Court judgment and the adjudicator’s fees and other incidental costs. This was said to have been stayed pending the outcome of the original Tribunal decision.
The original Tribunal only addressed this issue as follows:
“I find that the Applicants did not file this application for Domestic Building Disputes until 5 July 2010. The Applicants did not file an application seeking orders from relief from payment to the Respondents if they at any time believed that the works were defective and that they should not pay any monies at all to the Respondents. The Applicants did not take such action. This claim, which appears to be filed in retaliation to the act of the First Respondent successfully obtaining judgment for $12,512.56 against the First Applicant in the Southport Magistrates Court file number 1115/10 dated 14/5/2010. The Applicants thereafter filed this application some three weeks after judgment had been entered.”
The Appellants provided no submissions in relation to this point.
The Appeal Tribunal finds that neither the original Tribunal nor this Appeal Tribunal have jurisdiction to interfere with a judgement entered in the Magistrates Court. Therefore, any application for relief from payment of any amount involving this judgement had to be dismissed.
The Status of the Applicants and their relationship to the Respondents
The Appellants reject the original Tribunal’s finding that Ms Naylor was an owner builder and the finding that she required a Home Owner Builder Permit for the roof and batten works.
The issue here is who was responsible for the building work. The jurisdiction of the Tribunal in a domestic building dispute does not extend to disciplining parties for failure to hold the requisite licences.
The Appellants also reject the consequences of the finding that Ms Naylor was an owner builder and, therefore, responsible for quality control, standards of workmanship and overall supervision of the project.
The Appellants submissions referred the Appeal Tribunal to section 43D of the Queensland Building Services Authority Act 1991 (the QBSA Act) which defines the meaning of “owner-builder work” as follows:
owner-builder work means building work for a building that is to be used for residential purposes carried out on the owner’s land other than the following—
(a) …;
(b) …;
(c) building work for which an occupational licence is required (the occupational work), unless the work is carried out by a person who holds a licence to carry out the work.
The Appellants submissions misinterpret the meaning of this definition in the context of the facts. Here the building work was for residential purposes carried out on the owner’s (Appellants) land. It is not in dispute that an occupational licence was required for the removal of the asbestos roof. Both the First and Second Respondents held the required licences. This work would not have been “owner builder work” “unless the work is carried out by a person who holds a licence to carry out the work.” Therefore, the asbestos removal came within the definition of “owner-builder work”.
While the Appellants are now submitting that the First and Second Respondents were unlicensed at the relevant time in regard to the roof tiling work, the Appellants are also submitting that they contracted with the Respondents because they thought that they were appropriately qualified.
The Appellants' submissions also overlook the rest of the definition in section 43D which states:
43D Definitions for div 8
In this division—
carry out, in relation to owner-builder work, means—
(a) carry out the work personally; or
(b) do both of the following—
(i) engage 1 or more licensed contractors to carry out building work;
(ii) provide building work services that would usually be carried out by a licensed contractor in the course of the contractor’s business; or
(c) do a combination of (a) and (b).
Examples of an owner providing building work services—
• directing licensed contractors how to perform building work
• coordinating the scheduling of building work by licensed contractors
• arranging for payment of subcontractors
The Appellants' submissions then move to the amount involved for owner builders to require a permit and attempt to argue that the project was less that $11,000 if you exclude the cost of various items including remarkably the cost of the roof tiles. When the entire cost of the job is taken into account it is well over $11,000 and this submission is rejected even if it were relevant to the issue.
Applying these definitions to the facts here, the Appeal Tribunal finds that Ms Naylor was carrying out building work as an owner builder when she contracted with the Respondents. Therefore, there is no evidence that the original Tribunal decision resulted from an error of law.
The appeal on this point must be dismissed on these grounds
The relationship of Ms Naylor to the Respondents
It is not in dispute that Ms Naylor contracted with the First and Second Respondents. The issue of the First and Second Respondent’s licence was raised in relation to the owner builder issue determined above and in relation to liability for payment.
The Appellants in the original Tribunal and in this appeal submit that the Third Respondent was not contracted by them but by the First and Second Respondent. This issue was addressed in the submissions mainly in relation to the size of the battens.
The original Tribunal rejected the evidence from the applicants in this regard and stated:
“[155] The First Applicant gave evidence that the First Respondent arranged for the Third Respondent to do the work. Clearly this was not the case as email communications between her and the Third Respondent confirms she contacted him, arranged to meet with him onsite, arranged for the quotation to be provided and sent to her with no involvement of the First or Second Respondent whatsoever. The First Applicant gave evidence that she met the Third Respondent on site at the end of November or early December yet the quotation from the Third Respondent to the First Applicant is dated 21 October. The First Applicant gave evidence that the First Respondent told the Third Respondent what to do for the job. This was denied by both of the Respondents and the evidence suggests that is the case.”
The original Tribunal went on to say:
"[156] The evidence confirms that the Applicants contracted the Third Respondent separately and independently from the First and Second Respondent and that the Third Respondent was directed, supervised and controlled by the Applicants. His quotation was separate to the quotation provided by the First and Second Respondents. The Third Respondent does not appear to have been subcontracted by the First and Second Respondents. The evidence of the Applicants in this regard is not accepted. The Applicants have blatantly distorted the truth when alleging that the Third Respondent was contacted, sub-contracted and supervised by the First and Second Respondents. The Applicants could not deny the exchange of communications between them and the Third Respondent which clearly highlights a contractual relationship between them. They arranged for the Third Respondent to meet them on site, specifically requested a quotation from him for this part of the roof works, liaised with him directly regarding start date and negotiated the contract price requesting a reduced quote and reduced the scope of works they deal directly with him without any evidence being provided to the tribunal at all to support their allegations that the First and Second Respondents engaged and subcontracted him. The Applicants' evidence in this regard is totally rejected."
In addition the Appeal Tribunal noted that the Third Respondent produced to the original tribunal a copy of his quote to support his evidence. The quotation from the Third Respondent‘s company, BJF Constructions Pty Ltd for $1,975.00 was dated 21 October 2009 addressed to the First Applicant. The quote clearly describes the scope of works to:
"Supply and install new battens".The quote is itemised and lists the costs as:
(a)
Supply battens
$ 635.00
(b)
Labour to install battens
$1,040.00
(c)
Sarking
$ 300.00
TOTAL including GST
$1,975.00
The quote does not include any costs for removing the old battens.
The Appeal Tribunal notes that in an email to the First Respondent on 20 October 2009, Ms Naylor advised him in relation to the Third Respondent “He is very happy to work in with you”. There are further emails between Ms Naylor and the First Respondent up until 1 December 2009 when the price is agreed at $11,000 but there is no mention of the First Respondent supervising the Third Respondent as part of the First Respondent’s responsibility.
Likewise, the Appeal Tribunal notes that the Third Respondent was contracted by Ms Naylor to supply and install the battens without specifying the size of the battens. There was also no request for the Third Respondent to liaise with the First and Second Respondents as to the size of the battens.
Likewise, the Appeal Tribunal notes that the First and Second Respondents were not contracted to remove the battens. There was no evidence before the original Tribunal as to who removed the battens. The submissions from the Appellants suggest that the First and Second Respondents removed the battens and that for some unexplained reason they should have been aware and intervened when different size battens were being installed by the Third Respondent despite the clear evidence that they were not responsible for supplying and installing the battens.
The major findings of the original Tribunal on these points were as follows:
"[179] I find that there are two contracts that exist for the various roof works between the parties. I find that a contract exists between the Applicants and the First and Second Respondent for roof works and that the contract sum was $11,000.00.
[180] I find that a contract exists between the Applicants and the Third Respondent for roof works in the sum of $1,975.00.
[181] I find that all three Respondents are entitled to be paid for the works they completed pursuant to their quotations, which were provided to and accepted by the Applicants. I find that as the First Respondent has already obtained a judgment against the First Applicant for the sum I would have ordered in any event, I make no orders regarding payment to the First and Second Respondents. Although the First and Second Respondents were seeking payment of the $11,000.00 for the initial roof works and a further payment of $2300.00 being for the variation works, I am not satisfied that there was actual agreement by the Applicants to pay them despite the Applicants requesting such works should be performed. The First and Second respondent state that they have calculated the amount by an hourly rate but in the absence of any evidence supporting the fact the Applicants agreed to pay for the variation works, I make no order regarding the variation payment. I find that the Applicants should also pay the Third Respondent the sum of the contract price pursuant to his quotation that was provided and accepted by the Applicants."
The Appeal Tribunal has identified ample evidence on which the original Tribunal could rely to make the findings in paragraphs 179 and 180.
Because of these findings, paragraph 181 requires an examination of what the Applicants specifically contracted the Respondents to do and then an examination of whether or not they fulfilled the contract.
The First and Second Respondents were contracted to remove and dispose of the Supa 66 asbestos roof. The evidence shows that they carried this out. After the Third Respondent had supplied and installed the battens the First and Second Respondents were to lay new tiles, including bedding and pointing of ridges and hips and flashing to the existing house. The evidence shows that they carried this out although issues arose as to the Appellants' satisfaction with the look of the roof.
The evidence from Roofs-R-Us showed that the existing roof was defective which required them to straighten the rafters and to install three new rafters. This was not part of the Applicants’ contract with the First and Second Respondents.
Likewise, the Third Respondent was contracted by the Applicants to supply battens and to install them. The Third Respondent was not contracted to remove the battens and denied that he did so despite the Applicants' evidence that he did. The original Tribunal rejected the Applicants' evidence and relied on the contract to find that he did not. On this basis the Third Respondent was not aware of the size of the original battens even though that appears to be irrelevant given that the Supa 66 asbestos roof was to be replaced by a tile roof of different weight.
The Third Respondent stated that he asked his supplier for the appropriate battens but it is unclear what information he conveyed to the supplier.
The Appeal Tribunal finds that the batten size should have been specified by Ms Naylor when contracting with the Third Respondent as presumably Ms Naylor was aware of the roofing material to go on the battens. Although not specifically stated by the original Tribunal this seems to have been the basis on which it found that the Third Respondent was entitled to his full payment.
The Appellants submit that the First and Second Respondents should have advised the Third Respondent as to the batten size but this was rejected by the original Tribunal. The Appeal Tribunal reject this submission as evidence of an error of fact or law.
The Appellants submit that a "non qualified home owner would not know the correct batten size for a tile roof”. This submission ignores the Tribunal’s finding that Ms Naylor was carrying out building work as an owner builder and, therefore, was required to know the correct batten size for a tile roof or to find it out.
As an owner builder it was Ms Naylor’s responsibility to ensure that the work required was clearly set-out in a written contract or quotation and section 27 of the Domestic Building Contracts Act 2000 provides guidance as to what is required and how it should be addressed. Conversion of oral contracts to writing will avoid disputes arising.
Likewise, if Ms Naylor had ascertained that the roof was defective under the existing asbestos sheeting, she would have been able to contract in such a way that this was addressed by the engaged contractor. This would have achieved the result she required. In contracting in the way she did, with two contractors to do quite specific work, she failed to contract with anyone to attend to the underlying defects in the existing roof. She then attempted to blame the Respondents for her failure to contract appropriately.
If Ms Naylor, as an owner builder did not have the necessary skill to ascertain the work required, then she should not have attempted to carry out the work as an owner builder. She should have engaged a properly qualified person to contract for the entire job including supervision of the sub-contractors. As frequently happens with owners attempting to save money on building work, they take responsibility for work for which they are not equipped and this can get them into trouble which ends up costing them more money.
The Appellants' submissions attempt to traverse issues which were covered in the original Tribunal hearing and decided against them. The submissions do not identify any errors of fact or law made by the original Tribunal. Therefore, the appeal on these grounds must be dismissed.
The Appellants in their detailed submissions do not address the findings of the original Tribunal in paragraphs 179, 180 and 181. Therefore, these findings must stand despite the Appellants attempting to challenge these findings in other ways.
Returning now to the Appellants' submissions, the Appeal Tribunal has dealt with 2, 4 and 8 and will now proceed to deal with the other submissions.
Unlicensed contracting
This is an issue which should have been raised before the adjudicator which resulted in the Magistrates Court judgement. It clearly only relates to laying of new tiles, including bedding and pointing of ridges and hips and flashing to the existing house. The evidence shows that they carried this out although issues arose as to the Appellants' satisfaction with the look of the roof. There is no way in which the Appeal Tribunal can make any assessment which would enable it to adjust the award to the First and Second Respondents made in the adjudicators decision and then it has no jurisdiction to interfere with that decision.
The decision to award the claim to the First and Second Respondents was not made by the original Tribunal but by the adjudicator and, therefore, the Appellants are unable to identify an error of fact or law made by the original Tribunal. Leave is not granted on this point and the claim must be dismissed.
Claim contract never discussed
This claim relates to the contract between the Appellants and the First and Second Respondents. According to the Appellants' evidence, the oral contract between them was concluded between 3 and 16 December 2009. The work commenced on 16 December.
After the work by the Third Respondent was performed the Appellants alleged that he breached his contract and then allege that on 20 December 2009 they entered into an oral contract with the Second Respondent, acting on behalf of the First and Second Respondents, to rectify at the cost of the First and Second Respondents any defects in the batten work performed by the Third Respondent or not completed by him. The Appellants alleged that the First and Second Respondents then instructed the Third Respondent not to return to site. This oral contract was denied by the First and Second Respondents.
Clearly the first time a written contract was produced by the Second Respondent was 11 February 2010. The contract produced was a “BSA Minor Works Subcontract” which the Appellants rejected as being the wrong form and because the contract was wrongly dated 11 February 2001.
The Appeal Tribunal noted that the First Respondent apparently told the original Tribunal that he was employed and worked for the Second Respondent. This would appear to differ from his application in the Magistrates Court matter where he obtained judgement. However, there was no error of fact or law evident by the original Tribunal.
The original Tribunal rejected the Appellants' evidence of the oral contract of 20 December 2009. It also rejected the First and Second Respondents’ claims for carrying out for this extra work.
The issue here is not that there was never a contract but the production of a written contract. Here again the Appellants are confusing regulatory and discipline issues, which involve the Building Services Authority, and the resolution of domestic building disputes by this Tribunal. The original Tribunal found that there was a contract between the Applicants and the First and Second Respondents but because of the judgement in the Magistrates Court was not required to make any further orders as to payment.
The Appellants submit that the First and Second Respondents were in breach of the law by failing to provide them with a contract in writing. Section 26 of the Domestic Building Contracts Act 2000 prescribes that contracts must be in writing as follows:
26 Contracts must be in writing
A building contractor who enters into a regulated contract must ensure the contract—
(a) is in written form when it is entered into; or
(b) is put into written form—
(i) as soon as practicable (but within 5 business days) after it is entered into; and
(ii) before a start is made in carrying out the subject work.
Maximum penalty—80 penalty units.
However, section 7 of the Domestic Building Contracts Act 2000 defines a domestic building contract and states:
7(2) However, a domestic building contract does not include—
(a) a contract between a building contractor and subcontractor; or
(b) a contract between a building contractor and a building owner for the construction of 2 or more detached dwellings; or
(c) a contract between the holder of an owner-builder permit and a building contractor; or
(d) …
Having found Ms Naylor to be carrying out building work as an owner builder these sections would appear to put the obligation on her to ensure that there was a written contract except for the fact that the contracts were between her as the building contractor and sub-contractors. However, as this was not a disciplinary matter there was no need to decide these issues here.
The Appeal Tribunal notes that if Ms Naylor had read and complied with the requirements of section 27 of the Domestic Building Contracts Act 2000 and in particular sub-sections (2)(b) and (f) most if not all of these disputes may have been avoided. It states:
27 General contents of contracts
(1) The building contractor under a regulated contract must ensure the contract, in written form, complies with the formal requirements for a regulated contract.
Maximum penalty—20 penalty units.
(2) A regulated contract complies with the formal requirements for a regulated contract if the contract—
(a) is in English and is readily legible; and
(b) sets out in full all the terms of the contract; and
(c) sets out the warranties that are part of the contract because of section 41; and
(d) states the required matters; and
Editor’s note—
See section 28 (General contents—required matters).
(e) contains the required things; and
Editor’s note—
See section 29 (General contents—required things).
(f) includes any plans and specifications for the subject work; and
(g) each time a word or phrase defined for the contract is used—indicates the word or phrase is defined in the contract’s definition provision; and
(h) complies with any other requirements prescribed under a regulation.
To further clarify what is required in a contract sub-section (8) of section 27 states:
(8) In this section—
specification details, for a regulated contract, means—
(a) details of the subject work, including details of fixtures and fittings involved in the subject work; and
(b) details of materials and products to be used for the subject work; and
(c) details of finishes required for the subject work; and
(d) other details prescribed by regulation.
As no error has been identified by the Appellants, leave is not granted on this point and the claim is dismissed.
The Structural Engineer
The submissions by the Appellants do not identify any error of fact or law by the original Tribunal in relation to the structural engineer. Leave to appeal is denied on this point.
Decision Paragraphs 172 and 174
As the very submissions to the Appeal Tribunal state these matters were dealt with by the adjudicator and taken into account in determining the amount of his judgement. The original Tribunal did not alter the adjudicator’s judgement so the comments by the original Tribunal, even if in error, had no bearing on the outcome of the original Tribunal.
Therefore, for the above reason leave is denied in relation to this submission.
Decision paragraph 178
This submission partly involves the issue of the First Applicant being an owner builder on which the Appeal Tribunal has already ruled. An owner builder is required to have a working knowledge of the various building codes, Australian Standards etc and to properly supervise the contractors engaged on the project. This is clear from the BSA document headed “Owner Building” supplied with the submissions that an owner builder’s role is that of head or principal contractor.
The submissions by the Appellants do not identify any error of fact or law by the original Tribunal in relation to this point. Leave to appeal is denied on this point.
The 22 “major findings” going against the weight of evidence
The Appellants submit that there are 22 major findings going against the weight of evidence, which they refer to as “errors and technical misconceptions”.
The problem for the Appellants, in regard to most of these matters, is the original Tribunal’s findings on credibility where it concluded as follows:
On issues of credibility I found the Respondents to be open, honest, and truthful and gave evidence in a manner that they were prepared to admit to failings or mistakes when required. The First and Second Respondent were open and both gave frank evidence regarding the BSA findings, and that a Notice was issued against the Second Respondent. They both gave evidence regarding their discussion with the BSA about the complaint, the Second Respondent admitted he had been fined and said the fine was $2,000.00. The Second Respondent admitted that a complaint had been made to the BSA from the Second Applicant and that a letter from the BSA to the Second Applicant supported that. In contrast I found the Applicants had a propensity to distort the facts regarding important matters regarding their claim if it did not support their case. I find that where the evidence of the Respondents and the Applicants differ I preferred to accept the evidence of the Respondents.
In their submissions to the Appeal Tribunal the Appellants are really trying to reargue matters which had been well and truly ventilated before the original Tribunal who in many instances had found against them because their evidence was not believed or believable.
The original Tribunal was in a better position to assess the credibility of the witnesses than this Appeal Tribunal which dealt with the issues on the papers.
These submissions do not identify significant findings on the part of the original Tribunal which resulted in errors of law or fact. Leave to appeal is not granted in relation to these issues.
The Decision in favour of the Third Respondent
The name of the Third Respondent was incorrectly recorded in the Tribunal due to his failure to refer to the company by its full name. The decision of 12 September 2011 continued this error. The name of the Third Respondent is changed to BJF Constructions Pty Ltd.
The decision of 12 September 2011 is altered to: the Applicants are to pay to BJF Constructions Pty Ltd the sum of $1,975.00 within 7 days.
The Appellants' application for costs of the appeal
Having failed in their leave application the application by Simon Whitehead and Helen Naylor for their costs of the Appeal is dismissed.
Conclusion
For the reasons set-out above the Appeal Tribunal makes the following orders:
a. Leave to appeal on one point is granted but the appeal is dismissed.
b. The application by Simon Whitehead and Helen Naylor for their costs of the Appeal is dismissed.
c. The name of the Third Respondent is changed to BJF Constructions Pty Ltd.
d. The decision of 12 September 2011 is altered to: the Applicants are to pay to BJF Constructions Pty Ltd the sum of $1,975.00 within 7 days.
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