Wnuczynski v Maicon Electrical Pty Ltd
[2014] QCATA 239
•27 August 2014
| CITATION: | Wnuczynski v Maicon Electrical Pty Ltd [2014] QCATA 239 |
| PARTIES: | Melissa Jane Wnuczynski (Applicant/Appellant) |
| v | |
| Maicon Electrical Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL158 -14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Thomas, President |
| DELIVERED ON: | 27 August 2014 |
| DELIVERED AT: | Brisbane |
| ORDER MADE: | Leave to appeal is refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – MINOR DEBT – where work done at request of managing agent – where lessor did not authorise work – where claim for payment for work done – where tribunal found managing agent authorised work done – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 142(3)(a)(i) Chambers v Jobling (1986) 7 NSWLR 1, cited Dearman v Dearman (1908) 7 CLR 549, applied |
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 (Qld) (QCAT Act).
REASONS FOR DECISION
Ms Wnuczynski owns an investment home at Moranbah. Ray White Moranbah is the managing agent. In December 2012, the tenant complained about the air conditioning units in the home. Ray White issued a maintenance order to Maicon Electrical Pty Ltd. Maicon attended and, after calling Ray White’s office to discuss the work, fixed one air conditioner and replaced the other. It rendered a tax invoice for $2,849.
Ray White did not pay. Maicon filed a claim for payment of this and other invoices. The tribunal ordered that the individual owners be joined to the proceeding. At the hearing on 1 November 2013, only Ray White was represented. A Magistrate, sitting as a member of the tribunal ordered individual owners pay the invoice directed to work on their property.
Ms Wnuczynski wants to appeal that decision. She says that she did not authorise the work, and that she directed Ray White to engage another contractor because the air conditioner was under warranty. She contests the oral evidence Mr Gilbert, director of Maicon, gave at the hearing. She says that, if she had been aware of the work required, she would have obtained additional quotes and replaced the existing box air conditioner with another box air conditioner, not a split system air conditioner.
As this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
[1]QCAT Act s 142(3)(a)(i).
[2][2005] QCA 294 at [3].
The arguments Ms Wnuczynski now makes about Mr Gilbert’s oral evidence, which the learned Magistrate accepted,[3] were put to the Magistrate at the hearing.[4]
[3]Transcript page 1-14, lines 12-21.
[4]Transcript page 1-5, lines 38-44, page 1-13 at lines 9-14
Findings of fact will not usually be disturbed on appeal if the evidence is capable of supporting the conclusions.[5] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[6] The task of the appeal tribunal is to determine whether there is an error in the primary decision, not to decide where the truth lay as between the competing versions given by the parties.[7] The learned Magistrate had the advantage of seeing Mr Gilbert give evidence, and decided to accept his version of events.
[5]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[6]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[7]Fox v Percy (2003) 214 CLR 118 at 129 per Gleeson CJ, Gummow and Kirby JJ.
The learned Magistrate found that Maicon was authorised to do the work. The finding made by the learned Magistrate was open on the evidence. Once the learned Magistrate made that finding, what Ms Wnuczynski would have done is irrelevant to the learned Magistrate’s decision.
There is no reasonably arguable case that the learned Magistrate was in error. Leave to appeal should be refused.
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