Ymeir Homes Pty Ltd v Benger - [2012] QCATA 138

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
Cachia v Grech [2009] NSWCA 232
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
McIver BulkLiquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
Builders’ Registration Board of Queensland v Rauber (1983) 57 ALJR 376
Slinko v Guardianship and Administration Tribunal [2006] 2 Qd R 279
Renton v Magistrate Baldwin [2009] QSC 103

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] QCATA 138
Decision Date: 10 August 2012

CaseChat Overview and Summary

In the case of Ymeir Homes Pty Ltd v Benger, the applicant, Ymeir Homes Pty Ltd, sought leave to appeal a decision of the Queensland Civil and Administrative Tribunal (QCAT) that had been made in a minor civil dispute. The applicant, represented by Mr Ymeir, had been ordered to repay a deposit to the respondent, Mrs Benger, after failing to complete the work for which she had paid a deposit. The applicant argued that the proceedings were unfair, that the Adjudicator was biased, and that there were procedural errors that warranted an appeal. The Tribunal was required to determine whether there was a reasonably arguable case of error in the primary decision, a reasonable prospect of obtaining substantive relief, a substantial injustice that needed correction, or a question of general importance that would benefit from further argument and a decision by the appellate court.

The Tribunal found that the applicant had not demonstrated any error in the primary decision or proceedings. The Tribunal noted that the applicant was present when the decision was made and had been given the opportunity to present his case. The Tribunal also found that the applicant had declined multiple offers to engage legal representation and that there was no evidence to support the claim of bias. The Tribunal found that the decision of the Adjudicator was clearly open on the evidence and that there was no procedural error. As such, the Tribunal found that leave to appeal should be refused.

The Tribunal dismissed the application for leave to appeal, and no further appeal was permitted. The decision of the QCAT remained in place, and the applicant was ordered to pay the sum of $1,207.25 to the respondent within the specified time frame.

Orders