Ymeir Homes Pty Ltd v Benger
[2012] QCATA 138
•10 August 2012
| CITATION: | Ymeir Homes Pty Ltd v Benger [2012] QCATA 138 |
| PARTIES: | Ymeir Homes Pty Ltd |
| v | |
| Carol Benger |
| APPLICATION NUMBER: | APL085-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 10 August 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal refused. |
| CATCHWORDS: | Minor Civil Dispute – where findings of fact open on the evidence – whether bias Queensland Civil Administrative Tribunal Act 2009, s142 (3) QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 |
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
Mrs Benger engaged the services of an architect, Mr Scott Peabody, to assist her in finding a solution to a minor flooding problem from overland flow, mainly storm water, coming through her property. It was agreed that the cheapest and simplest way to solve the problem was to excavate a ‘swale drain’ on the side of the property. The job involved no materials, all that was needed was a simple depression cut in the ground by a bobcat.
On 22 July, Mr Ymeir (of Ymeir Homes Pty Ltd) agreed he would undertake the work however he demanded that Mrs Benger first pay him a deposit of $2,000.00 even though the extent of the works had not been ascertained nor specifically costed. Mrs Benger reluctantly gave him a cheque for the requested amount. Mr Ymeir did not issue her with a receipt for the deposit.
It was then arranged that Mr Peabody, Mr Ymeir, who would organise the bobcat, and Mrs Benger would meet on the 26 July 2012 so the work could be carried out.
On 26 July 2011, Mrs Benger, Mr Peabody and the bobcat operator arrived early and waited for Mr Ymeir to arrive, but did not attend that day. Instead he sent his son and another employee in his place. Mr Peabody told the bobcat operator where to cut the swale, which he did in about five to six hours. Time was also taken up in waiting for Mr Ymeir. Although Mrs Benger offered to pay the bobcat operator there and then, he refused and told her that she had already paid her deposit and Mr Ymeir would organise the payment. Mrs Benger also attempted to contact Mr Ymeir several times that day via phone and email to finalise the account.
On 27 July 2011, Mr Ymeir sent an invoice to Mrs Benger for the amount of $3,000.00 even though he still held her $2,000.00 deposit. Taking into account the time the bobcat spent cutting the swale, Mrs Benger calculated that Mr Ymeir owed her a refund of $1,447.00. This was based on the fee of the bobcat operator being $85.00 per hour for six and a half hours which is a total of $553.00 minus the $2,000.00 deposit.
Mrs Benger filed an application to recover the balance of the deposit paid and the matter came on for hearing before a Tribunal Adjudicator on 20 February 2012. After hearing evidence from both parties, and reviewing the documents, the learned Adjudicator made an order that Mr Ymeir pay the sum of $1,207.25 to be paid on or before 4.00pm on 19 March 2012. This sum is made up of six and a half hours at $93.50 which amounts to $607.75 (bobcat excavator fee), $100.00 for Mr Ymeir’s son and employee, one and a half hours payment of $180 for Mr Ymeir and his involvement in the work, and $95.00 for the filing fee.
From that decision, Mr Ymeir has filed an application for leave to appeal. Leave to appeal is necessary as this is an appeal from a decision in the minor civil disputes jurisdiction.[1]
[1] Queensland Civil Administrative Tribunal Act 2009, s 142 (3).
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 2.
[4] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[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.
The Appellant contends in his grounds of appeal that he was denied a fair hearing as he was not advised of the hearing outcome. He also complains that he was at a disadvantage because Mrs Benger was permitted to have legal representation. Another ground is that the tribunal did not provide him with sufficient resources, pen and paper, during the trial and he felt that the Adjudicator favoured the other party, in other words was biased against him.
[10] As to the first ground of appeal, on the day of the hearing Mr Ymeir was present in the room at the time the Adjudicator gave reasons and orders at the conclusion of the hearing.
[11] With regards to the second ground of appeal, when she first applied for legal representation, Mrs Benger’s request was dismissed. However, after further consideration, her request for legal representation was allowed. That is an exercise of discretion which will not be lightly interfered with. Even so, during the hearing Mr Ymeir raised the issue that he did not have a solicitor. The learned Adjudicator asked Mr Ymeir whether he would like to engage a solicitor and or whether he was happy to proceed without one. Mr Ymeir was asked a number of times if he would like to engage a solicitor, to which each time he replied ‘no’. Mr Ymeir declined each time and stated that he was happy to proceed without legal representation.
[12] With regards to the third ground of appeal, each party must come prepared on the day for their hearing and no complaint was made during the course of the hearing.
[13] Finally, the complaint of bias has no substance. The test for bias in statutory tribunals is whether a reasonable and informed bystander would suspect that the tribunal was biased.[6] For obvious reasons, the subjective impressions of a party are not sufficient proof of bias.[7] There is nothing in the transcript which supports a conclusion that the learned Adjudicator was at any stage biased. It is evident that he spent considerable time trying to ensure that Mr Ymeir understood the hearing process and the issues for determination throughout the hearing. For example, during the hearing, the Applicant introduced new evidence and the learned Adjudicator asked for it to be shown to Mr Ymeir, who declined, and despite that he was told again that, ‘No, you should see the document’.
[6] Builders’ Registration Board of Queensland v Rauber (1983) 57 ALJR 376, 384.
[7]Slinko v Guardianship and Administration Tribunal [2006] 2 Qd R 279; Renton v Magistrate Baldwin [2009] QSC 103, [21].
[14] Both parties were given ample opportunity to present their cases and there does not appear to be any error of fact or law in the conduct of the proceeding or the decision reached by the learned Adjudicator, which decision was clearly open on the evidence. As no error has been demonstrated leave to appeal should be refused.
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