Williams v Zoppi
[2011] QCATA 42
•2 March 2011
| CITATION: | Williams v Zoppi [2011] QCATA 42 |
| PARTIES: | Mr Darryl Charles Williams (Applicant/Appellant) |
| v | |
| Ms Elena Marie Zoppi (Respondent) |
| APPLICATION NUMBER: | APL232-10 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 2 March 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal is refused. |
| CATCHWORDS: | Minor Civil Dispute – Trader claim – where Tribunal member preferred evidence of the respondent’s witness – no basis to disturb findings of fact – no error demonstrated Queensland Civil and Administrative Tribunal Act 2009, s 143(2) QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 |
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
The applicant, trading as All Space Place, carries on business as a supplier of kitchen cabinets. On 8 April 2009, he provided a quotation to the respondent to supply kitchen cabinetry and bench tops for a total cost of $8,860.00. This price did not include installation or plumbing and electrical work which were to be separately contracted by Ms Zoppi. The price of $8,860 was accepted and the kitchen cabinetry and bench tops were supplied and installed. Although there was no contract between Ms Zoppi and the applicant for the installation of the cost, an estimate was given as follows:
Cabinetry $1,200
Bench tops $1,000
Electrical $ 500 (For standard installation, no extra works.)
Plumbing $ 500 (For standard installation, no extra works.)
Therefore, the total cost of installation was to be approximately $3,200.00.
When the kitchen was supplied, there were numerous defects and as a consequence, Ms Zoppi filed an application for minor civil dispute – consumer dispute in the Tribunal. The claim originally was for $25,000 which essentially included a refund of the monies paid to the applicant, and the cost of removing and reinstalling a new kitchen.
The application came on for hearing before a Tribunal Member on 3 September 2010. After both Mr Williams and Ms Zoppi gave evidence, the Tribunal Member ordered that the applicant pay to Ms Zoppi the sum of $13,202.80 on or before 4 October 2010.
Mr Williams has now appealed from that decision. As this is an appeal in a minor civil dispute matter, leave of the Appeal Tribunal is necessary[1]. 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]
[1] QCAT Act section 143(2).
[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.
Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect of the applicant obtaining further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?
In his application for leave to appeal, Mr Williams contends that the Tribunal placed too much weight on a letter from Mr Windsor, of Granite Transformations, who essentially said that the kitchen was beyond rectification and needed to be replaced. He said:
“Overall the finish to the project is very poor with glaring mistakes in the cabinet and granite. I cannot comment on the origin of the granite but suspect it is a Chinese import of doubtful quality.
I recommend the only way to go is to replace the kitchen completely and I have provided our quote to do so. Should you need any further information please contact me.”[6]
[6] A letter from Granite Transformations to Ms Zoppi 14/2/2010.
The letter from Mr Windsor also particularises other defects with the kitchen which lead him to the conclusion above. Mr Williams had an opportunity to cross examine Mr Windsor but chose not to do so.
Apart from Mr Williams’ evidence before the Tribunal, Mr Windsor’s evidence was the only evidence going to the quality of the kitchen cabinetry overall and the learned Member was entitled to take that into account in coming to his determination.
In grounds 2 and 3 of the application for leave, Mr Williams contends that he was not given an opportunity for an independent assessor to inspect the kitchen. There was nothing to prevent Mr Williams from undertaking an independent assessment if a joint expert could not be agreed. Furthermore, evidence could have been lead from the installers as to the finish of the kitchen they installed. In addition, photographs were provided in a comprehensive submission prepared by Ms Zoppi which could also have been commented upon by an independent expert. There did not seem to be any dispute of fact as to the defects in the kitchen and therefore, this could have easily been addressed by Mr Williams.
In fact, he concedes that there are defects but he believed that he could attend to rectification, or alternatively give Ms Zoppi a discount for monies owed to him.
Therefore there is nothing to suggest that there has been a denial of natural justice because it was clear from the information provided to him the nature of the case he had to meet.
The final ground for appeal relied on is Mr Williams’ contention that his evidence was ignored by the Tribunal Member. He states that he works everyday in the kitchen manufacture and supply business and was best placed to give expert evidence about rectification of the defective kitchen.
It is true that the Tribunal Member did prefer the evidence lead by Ms Zoppi and her witnesses. The learned Member said:
“In the result on balance, having considered the evidence in this matter, I prefer and accept the evidence of the applicant to the evidence of the respondent and accordingly find, in all the circumstances, the respondent should repay to the applicant the sum of $8,988.80.”
However that conclusion was properly explained by the Tribunal Member accepting the evidence of Mr Windsor of Granite Transformations as independent evidence in preference to the evidence of Mr Williams.
My sole duty is to determine whether there is an error in the primary decision. It is not my task to decide where the truth lay as between the competing versions given by the parties.[7]
[7] Fox v Percy [2003] HCA 22 at [32] per Gleeson CJ, Gummow and Kirby JJ.
The learned Member came to a decision on the evidence before him and on perusal of the transcript and the evidence in support of the applicant’s contentions, no error is demonstrated nor is any error apparent.
The qualification of the claim is also substantiated. Ms Zoppi was asked by the Tribunal Member quite specifically what she was claiming. The following exchange clarifies her claim:
“PRESIDING MEMBER: Wait a minute. You’re seeking the return of the monies paid, that you paid him, which is $8,000 – well it was $11,194 minus $2,205.20, so you’re seeking $8,988.80 plus repairs?
MRS ZOPPI: Correct.
PRESIDING MEMBER: What you’ve been showing me are the quotations for?
MRS ZOPPI: Repairs and replacement.
PRESIDING MEMBER: So all you’re seeking is the money you paid him, which effectively would cover the kitchen, a new kitchen, plus removing it?
MRS ZOPPI: Yes, and repairing of the walls.
PRESIDING MEMBER: The removing and repair?
MRS ZOPPI: Correct.”
The cost of removal and repair was provided by Menniti Developments Pty Ltd of $4,466. The Tribunal Member considered that this cost was rather high, and reduced that by $1,000. He also allowed the cost of the removal and refixing of plumbing fixtures in the sum of $748. The Tribunal Member was entitled to either accept or reject this evidence and once again, no error can be identified on his part in coming to the conclusion that he did in assessing damages.
One observation that I would make is that no reference was made to any residual value of the kitchen cabinets supplied by the applicant. Once removed, it may be worthless or alternatively it may have some value to Mr Williams. It does seem to me, that upon payment of the damages awarded, he is entitled to a return of the kitchen cabinets supplied by him. However, no evidence was lead to this effect before the Tribunal.
As no error on the part of the Tribunal Member can be identified, leave to appeal must be refused.
0
0
0