Boneda Pty Ltd ATF The Barbera Trust v AMS Commercial Solutions Pty Ltd [2025] QCATA 95

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Boneda Pty Ltd ATF The Barbera Trust v AMS Commercial Solutions Pty Ltd [2025] QCATA 95 PARTIES: BONEDA PTY LTD ATF THE BARBERA TRUST (applicant/appellant) v AMS COMMERCIAL SOLUTIONS PTY LTD (respondent) APPLICATION NO/S: APL048-25 ORIGINATING APPLICATION NO/S: MCD2985-23 MATTER TYPE: Appeals DELIVERED ON: 25 October 2025 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Richard Oliver ORDERS: The applicant has leave to appeal. The applicant’s appeal is allowed. The decision of the Tribunal dated 9 January 2025 is set aside. Cross-Appeal The respondent has leave to appeal on the cross- appeal. The appeal is allowed. The applicant must pay the respondent the sum of $14,319.50 by 30 December 2025. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – CONTRACT – TERMS OF THE CONTRACT – PERFORMANCE – BREACH – ASSEESSMENT OF DAMAGES – where applicant carries on business of a supplier of industrial floor tiles – where the respondent is a project manager for certain construction works – where contract entered into between the parties for the applicant to supply certain floor tiles as per quotation and purchase order – where applicant supplied incorrect sized tiles – where sample tile supplied prior to acceptance – where sample tile the same as the tiles supplied but smaller than those in the -- 1 of 10 -- 2 quotation and purchase order – whether contract was for the supply of smaller sample tile or that specified in the quotation and purchase order – whether applicant breached the contract with the supply of the smaller tile DAMAGES – ASSESSMENT – where supply of smaller tiles breached the contract – where no consideration given in the reasons for decision about the counterclaim for breach in supplying smaller tiles – where no order made in respect of the counterclaim – where no assessment of the respondent’s loss – where damages not assessed – whether reasons sufficient – whether respondent entitled to damages for breach of contract – whether damages claimed in the contemplation of the parties Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i) Allen v Queensland Building and Construction Commission [2023] QCATA 66 Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54 Terera & Anor v Clifford [2017] QCA 181 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION [1] The appeal arises from a dispute between the appellant, Boneda Pty Ltd ATF The Barbera Trust trading as Groove Tile and Stone (“Groove”) and the respondent AMS Commercial Solutions Pty Ltd (“AMS”) in relation to the supply of certain floor tiles by Groove to AMS on 30 June 2022. Groove issued an invoice for the tiles at a cost of $11,719.41 and sought payment. AMS did not pay the invoice. [2] AMS contended that the tiles supplied did not conform with the size of tiles ordered and rejected the tiles. A dispute arose with Groove claiming that the tiles supplied were as per a sample tile given to Mr Hartley of AMS by Mr Casey from Groove before the order was confirmed. To try and resolve the dispute about the supply of what AMS contended were the wrong size tiles, Groove gave AMS a number of options. One was that Groove would collect the tiles and issue a credit for the invoice of $11,719.41. AMS accepted this option but contended that Groove breached the contract for the supply of the tiles and sought to recover damages for the additional work associated with sourcing and laying new tiles. It sought reimbursement from Groove for that cost, which it contended was $18,082.50. [3] Groove collected the tiles and issued the credit note for $11,719.41. However it would not pay the damages claimed by AMS so AMS then commenced a proceeding in the minor civil disputes jurisdiction of the Tribunal claiming $18,082.50 plus the QCAT filing fee of $379.50. The extra costs were made up of: (a) The cost of the alternate new tiles; -- 2 of 10 -- 3 (b) Honing the new tiles; (c) Cutting down the new tiles to size; (d) Freight; (e) Time take up by AMS (administrative costs) in re-ordering new tiles from a different supplier. [4] After a hearing on 23 July 2024, the adjudicator delivered a reserved decision on 9 January 2025. The delay was as a result of a direction being made at the end of the hearing to allow Groove’s sales representative Mr Ben Casey to file further evidence about the provision of the sample tile. No further statement was filed. [5] The final decision of the Tribunal was that Groove pay to AMS the sum of $11,339.91 plus the filing fee of $379.50. The reason for this order was that:1 Furthermore, the applicant is arguing that the respondent has not complied with its agreement as outlined in quote 60888. It is clear from the evidence that the respondent has not delivered goods in accordance with the quote and subsequent purchase order. It is, therefore, a clear case of the respondent failing to meet its obligations. Furthermore, there is limited evidence that the respondent tried to rectify the situation. I am satisfied that the respondent has breached the section 56 Guarantee and furthermore that the respondent did not meet its obligations under the agreement to supply the required tiles. ………………. I, therefore, will only allow the claim in the amount of the cost of the towels paid to the respondent i.e. $11,339.91 and the filing fee of $379.50 [6] As for AMS’s claim for damages, no specific decision was made about this. I will say more about this later in these reasons. [7] What the adjudicator failed to appreciate, and what is conceded by AMS, is that Groove was never paid the $11,339.91 as it had issued a credit note for the invoice. Therefore there was never any money to be refunded to AMS for the purchase of the tiles. Clearly the adjudicator was in error in making this order. It is also clear the adjudicator misunderstood the evidence. [8] As a consequence of that error, Groove filed the application for leave to appeal or appeal on 10 February 2025. Because this is an appeal from a decision in the minor civil disputes jurisdiction, leave to appeal is required under s 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). Leave to appeal (or permission) will usually only be granted where there is a reasonable argument the decision was attended by error, or that an appeal is necessary to correct the substantial injustice caused by the error.2 [9] In the response to the appeal, on 20 March 2025, AMS filed a response which was in reality a cross-appeal. In Part C of the response AMS states: 1 Reasons [17]–[24]. 2 Terera & Anor v Clifford [2017] QCA 181. -- 3 of 10 -- 4 We do not dispute the appeal made by Boneda Ltd (sic) ATF the Barbera Trust on 07/02/2025 based on the award of $11,719.41 to AMS Commercial Solutions Pty Ltd on 09/01/2025 as we have already received a credit note for the wrong tiles. [10] Therefore, the premise upon which the order was made was incorrect, that is that Groove was required to refund the cost of the tiles. To correct this error, leave to appeal is granted and that decision is set aside. The cross-appeal [11] Turning then to the cross-appeal, the same principles apply that is, leave to appeal is necessary. In addition to what is stated above, the principles were also set out by Judicial Member McGill SC in Allen v Queensland Building and Construction Commission (‘Allen’):3 As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage. An Appeal Tribunal would not usually disturb findings of fact on appeal if the evidence is capable of supporting the finding, and it is not contrary to compelling interferences. If leave to appeal is granted, the appeal is by way of rehearing so far as it is against a decision on a question of fact, or of mixed fact and law: the QCAT Act s 147. Otherwise it is an appeal which will only correct an error of law: the QCAT Act s 146. [12] It is also usual for an appellant to raise specific grounds of appeal. That is identifying the errors in the original decision. Given that many appellants in minor civil disputes are self-represented, considerable latitude is given in determining if there is a basis to interfere with the primary decision. It is not necessarily confined to the application itself but also other submissions or contentions relied upon by a party. [13] To be clear, an application for leave to appeal is not a rehearing of the original dispute. Regard is had to the reasons of the adjudicator who had the opportunity to review all of the evidence and make an assessment of that evidence in making a decision. This includes assessing the credit of witness, if credit is an issue in the proceeding. Which it seems not to be the case here, because the substantive evidence relevant to the dispute is contained in documents and emails. [14] In Part D of the Response, no grounds of appeal are articulated. AMS is asking the appeal tribunal to review the amount payable to AMS as a result of what is alleged to be Grooves’ breach of contract for supplying the wrong tiles. The submissions filed in support of the appeal, by way of an affidavit of Simon Brindley, although in the nature of evidence do descend to some particulars of error in the final decision of the adjudicator. The errors are immediately apparent in that no findings of fact were made about the tiles to be supplied under the contract. That is, the supply of tiles did not comply with the contract. It follows from this, and is evident in his reasons, that the adjudicator did not grapple with AMS’s claim to determine the basic steps to be considered in a case like this for damages for breach of contract. Firstly, what was the contract between the parties for the supply of tiles; secondly, did Groove breach the 3 [2023] QCATA 66, [2]. -- 4 of 10 -- 5 contract by supplying the wrong tiles; and thirdly, and importantly in this case, what damages flow from the breach, if found. [15] The reasons focus mainly on the failure of Groove to supply the correct tiles, and once they were returned, failed to give AMS credit for the returned goods. As noted above this was not an issue in the proceeding and AMS had always maintained a credit was issued relieving it of the obligation to pay for the incorrect tiles. [16] What was in issue, and clearly raised by AMS, was the extra cost AMS was put to in ordering other tiles and cutting them down to the size of the tiles that were supposed to be supplied in the contract with Groove. Although the reasons recite the nature of the claim the only conclusion reached was that: I therefore cannot include and (sic) payments to the applicant for its time and administrative costs as section 83 of the Queensland Civil and Administrative Tribunal Rules 2009 only permits costs of the filing fee.4 [17] It is difficult to reconcile this statement with the claim for damages referred to in [3] above. [18] The other issue was Groove’s claims for the administrative costs it was put to in supplying and retrieving the undersized tiles. This was not allowed. Perhaps the reference to applicant in [22] should have been a reference to respondent (Groove). [19] What is apparent from the reasons is that the substance of the applicant’s claim was not considered in any meaningful way in the reasons. This is an error of law and insofar as it is necessary, leave to appeal is granted in respect of the cross-appeal. Consistent with the statement in Allen referred to above, the appeal tribunal will determine the appeal by way of re-hearing so far as it is against a decision on a question of fact, or of mixed fact and law. The contract [20] A little history is necessary to understand the background to the dispute. AMS was the project manager for major renovation works being carried out at the Pacific Fair Shopping Centre at Broadbeach. This work involved the tiling of a significant area of the centre. [21] In or about May 2021 AMS asked Groove for a quotation to supply 151.29 m2 of Casper White Granite Hones 600 x 300 x 20 mm tiles. The quotation was provided in “Sales Quote” 7678 dated 19 May 2021 for a total cost of $13,616.12. There was no timeframe for the supply noted on the quotation. For a variety of reasons the purchase of the tiles did not go ahead at that time. [22] On 3 June 2022, Chad Hartley, on behalf of AMS, sent a Purchase Order No 149123 to Groove to supply the tiles. The purchase order made specific reference to the quote and said: SUPPLY AND DELIVER NEW TILES TO LOADING DOCK 2 AS PER QUOTE revised quote 7678 4 Reasons [22]. -- 5 of 10 -- 6 I AM CURRENTLY SEALING 1 TILE FOR ACCEPTANCE, PLEASE TAKE THIS PURCHASE ORDER AS A HOLD ON THE TILES UNTIL I CAN CONFIRM THE WHITE TILE NEXT WEEK ON MONDAY [23] However, and relevant to the issue of breach, the placing of the order was preceded with a telephone discussion between Mr Hartley (my assumption) and Mr Casey of Groove on or about 18 May 2022 querying whether the tiles were available. It is contended, through hearsay evidence given by Ms Barbera,5 that AMS were told that Groove did not have them, but could order them from China, which would take some weeks (up to 8 weeks). Apparently, Mr Casey said they would try and source them locally. He found a local source with a similar tile, Slate & Stone. Mr Casey’s evidence is that he provided a sample of the tile to be supplied to Mr Hartley. This is not contested save that Mr Hartley says the sample was only to confirm colour and not size. [24] Having provided the sample, Mr Hartley had the tile “sealed” presumably to check finish and colour.6 On 13 June 2022, Mr Hartley emailed Mr Casey at 7:41am to say that: Client has approved the sealed sample, we are good to proceed with the order. [25] Mr Casey then ordered the tiles from Slate & Stone. They were collected and taken to Groove’s holding bay on 22 June 2022 until ready for delivery to AMS. On 29 June 2022 when Ms Barbera was checking the order for delivery, for the first time she became aware they were 545 x 271 x 20 mm honed tiles, not the 600 x 300 as per the purchase order. [26] The tiles were delivered on 29 June 2022 and by this stage, according to Mr Hartley, the existing floor at Pacific Fair had been demolished and made ready for the new 600 x 300 tiles to be installed. On the night work was to begin the discrepancy was noticed and contact was made with Groove. Mr Casey was contacted and he assured Ms Barbera that, effectively, there was nothing to worry about because he had given Mr Hartley a sample tile. [27] AMS attempted to persuade the owner that the undersized tiles should be used but to no avail. The 545 x 271 tiles were collected by Groove and the only option AMS had, given that the floor had been demolished, was to purchase 600 x 400 x 20 mm Fox White Granite tiles out of Sydney from Cinajus Pty Ltd. I accept these were the closest match to the Casper White. I also accept that this was the best that could be done in the circumstances. [28] However these tiles needed to be cut down to 600 x 300. Also the surface had to be honed to provide a uniform polished finish. [29] Mr Casey did offer to replace the supplied tiles with 600 x 300 tiles but there would be delay in having the tiles shipped from China of up to eight weeks. That is eight weeks from 29 June 2022. Sample tile [30] Groove’s defence to AMS’s claim for damages is solely based on the sample tile supplied to Mr Hartley, which was the 545 x 272. Mr Hartley accepted that he did 5 Mr Casey declining to provide any further evidence. 6 Sealing floor tiles with an appropriate sealant is common practice to maintain colour and durability. -- 6 of 10 -- 7 notice the difference in size when he was supplied with the sample. In his further statement provided pursuant to the direction of the adjudicator at the end of the hearing, the relevant part referred to a site meeting with the Pacific Fair representative in late May 2022. He said:7 When on site with the sample tile it was noted that the tile was smaller than the existing tiles being 600 x 300mm. A phone call was made to be in Ben Casey of Groove Tiles to query the discrepancy. A conversation was had and at no stage was I informed that Commercial Solutions would be supplied anything other than that which was quoted and stated in all supporting documents. On 31 June then (sic) preceded to issue the relevant purchase orders for the project including tiles for the supply of tiles and sizes as stated in quotation and all supporting documents. [31] Mr Hartley said that the request for a tile sample was to match colour only and not size. Unfortunately, despite Groove’s request, Mr Casey has not provided any further evidence as to the circumstances of the supply of the sample tile or the order. It follows that he must also have known about the difference in tile size being very experienced in the supply of tiles for commercial purpose, and probably domestic as well. In fact the adjudicator commented on this in his reasons at [13]. [32] The only other objective evidence as to the purpose of the sample tile, is that in the purchase order itself it states that Mr Hartley, project manager, is “currently sealing 1 tile for acceptance”. Sealing is applying a seal to the tile, presumably to see if there is a change in appearance. This is not elaborated on in the evidence. However in the absence of any specific evidence on the point, given general knowledge of tiling practices,8 I infer that is its purpose. [33] What I do find, in the absence of any specific evidence from Mr Casey, and it is again consistent with common sense, that the sample tile was not supplied to confirm size. There was no need for this because that is what was in the quote and ultimately the purchase order. [34] It is open on the evidence to conclude that Mr Casey knew, and therefore it was the knowledge of Groove that: (a) The sample was not as per the quote; (b) There is no evidence from him that he told Mr Hartley or anyone at AMS that the 600 x 300 could not be supplied at the time he gave over the sample tile. (c) Ms Barbara knew that the tiles to be dispatched were not 600 x 300, as expected, and did not inform Mr Hartley of this at the time, instead relied on information from Slate & Stone; (d) The sales order that went to AMS on 13 June 2022 was for the 600 x 300 tiles; (e) It was not until 13 September 2022 that an invoice went out to AMS for the 545 x 271 tiles. 7 Statement dated 8 August 2024. 8 Hearing and deciding numerous building disputes and Queensland Building and Construction Commission review applications over many years. -- 7 of 10 -- 8 [35] In considering all of this evidence, including that contained in the transcript9 of the hearing, which is a reiteration of what is contained in the documents and emails, there was clearly a contract between the parties for Groove to supply AMS with 600 x 300 x 20 mm tiles in accordance with the purchase order. There was no variation to that contract either in writing or orally. [36] I accept Mr Hartley’s evidence that the tile sample was for the purposes of colour only and not size. Again, just to reinforce this point why would he ask for a sample to confirm size, as the modern phrase goes, “it is what it is”. [37] At no stage did Mr Hartley, or AMS acquiesce in acceptance of the size of smaller tile ultimately offered by Groove when it could not supply the 600 x 300 tiles. [38] In failing to supply the 600 x 300 x 20 mm tiles, it breached the contract made on 13 June 2022 when Mr Hartley gave the unconditional go ahead to supply the tiles as per the quotation and the purchase order after the “client” had approved the sealed sample. Damages [39] The common facts resulting in financial loss to AMS, known to both parties at the time of supply, can best be summed up in the evidence of Mr Brindley, director of AMS, during the hearing:10 To rub salt in the wounds, we’ve got correspondence here that says when we first discovered the tiles were wrong, six weeks after, Groove’s representative, a chap named Ben, said to Luke or Chad, “Well, if we didn’t – you know, we can get you the right tiles, but it’s six, eight or 10 weeks”, which if we’d have – it’s easy in hindsight to rewind the clock, but if we’d have been told on day 1, we’d have had a fighting chance to say to the client, “Look, we can’t do this for you. There’s been a – business isn’t easy. We all have issues. We can’t do this for you but we’ve got an alternative. We can hold the job up” – we hadn’t jackhammered the floor up at that time – “We can hold the job for you. They’re going to come from China. There might be a two-week delay.” We had some options. Groove gave us no options, so really, I think I’ve summed it up there. [40] It is reasonable to infer that Mr Casey knew the timing of the delivery of the tiles to AMS and that the old tiles would be coming up. If he had been forthright in telling Mr Hartley that he could not supply the 600 x 300 when he provided the sample then any delay could not be attributable to Groove. Even, if the situation was that AMS became aware of the discrepancy before the old tiles came up, it is difficult to see how there could be loss unless timing, e.g. delivery date, was an essential term of the contract, which it was not here. [41] It is useful to start with the general principle as stated by the High Court in Commonwealth v Amann Aviation Pty Ltd:11 ...the plaintiff is entitled to recover such damages as arise naturally, that is, according to the usual course of things, from the breach, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach… 9 Mr Casey did not attend the hearing. 10 Transcript page 6 line 10–22. 11 [1991] HCA 54, [51]. -- 8 of 10 -- 9 [42] Here Groove knew that its obligation under the contract was to supply 600 x 300 tiles, again there was no variation that the tiles supplied would be as per the sample tile. As I have already mentioned, it is reasonable to infer knowledge to Groove that AMS would not want the tiles until the new floor was ready to be laid. It also knew at the time of the contract that 600 x 300 Casper White tiles could not be sourced in Australia for up to eight weeks. Alternatively it is reasonable to infer, given the relationship, Groove knew that AMS would suffer loss under its contract with Pacific Fair if tiles were not put down expeditiously once the floor was made ready for the new tiles. [43] On the basis of these known facts, the failure to supply the contracted 600 x 300 tiles resulted in damages that naturally arise from Groove’s breach of contract. [44] AMS, Mr Hartley in particular, contacted Mr Casey to try and reach a solution but to no avail. Its only option was to source the alternate tiles. This was not the best outcome because the tiles had to be honed, polished and cut down. Given all the circumstances it was reasonable for AMS to do this and mitigate its loss as best it could. In my view reasonable damages for this are recoverable. [45] The claim made is set out in correspondence with Groove, starting with emails on 16 November 2022, although there were many emails about the problem prior to this. It seems AMS held back payments for other supplies trying to offset the costs of this job from those invoices.12 In any event AMS provided Groove with the invoices for the honing, cutting down and freight costs from Sydney. It also claims administrative costs for time by staff to fix the problem in the sum of $3,600.00 ($90/hr). [46] It is reasonable, and consistent with principle, that AMS should be put into the position it would have been in had the breach not occurred. However the loss must be within the reasonable contemplation of the parties.13 [47] Once again in the circumstances outlined above I consider that given the urgency of the situation it was reasonable for AMS to adopt the course they did in obtaining similar tiles with the need to make modifications. Groove has not, in any substantial way, challenged this. Its fundamental response to the claim is, as I said above, reliant on the sample tile. [48] I therefore find that AMS is entitled to damages resulting from Groove’s breach and I propose to assess damages as follows: (a) The cost of honing the tiles in accordance with the invoice from Construct Waterproofing Pty Ltd in the sum of $9,350.00 (GST incl); (b) The cost of cutting down the tiles in accordance with the invoice from Customed Tiles in the sum of $2,640.00 (GST incl); (c) The cost of freight in accordance with the invoice from Cameron Interstate in the sum of $1,950.00 (GST incl). [49] I do not propose to allow the administrative cost, firstly because there is no specific breakdown of these costs, and secondly, the costs would have been incurred in the normal running of the business. Additionally, the claim of $90/hr is a random amount 12 This ultimately resulted in Magistrates Court Proceedings, which were resolved. 13 Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54. -- 9 of 10 -- 10 without any evidence to support the fact that this is a reasonable rate in the circumstances. [50] I therefore assess AMS’s loss in the sum of $13,940.00. It is entitled to reimbursement of the filing fee below of $379.50, which was awarded to Groove. Summary [51] Leave to appeal is granted to both the appeal and the cross-appeal. [52] The Tribunal was in error in ordering Groove to pay or refund AMS the cost of the tiles when a credit note had been issued before any payment was made. Therefore that decision is set aside. As for Groove’s counterclaim in the proceeding below, to be clear, it is dismissed because of my findings it was in breach of its contract with AMS. [53] The Tribunal was in error in not properly considering, and giving reasons with respect to AMS’s claim for breach of contract. In fact, no order was made about the counterclaim in the proceeding below. It was not dismissed. On a consideration of all of the evidence put before the Tribunal below, the only conclusion open was not only that AMS was entitled to finding that Groove breached the contract, but also an assessment of damages that arose from the breach. Rather than send the proceeding back for that to be done, I am in as good a position to make that assessment as the original decision maker. [54] Therefore AMS’s cross-appeal is allowed with an order that Groove pay to AMS the sum of $14,319.50 by 30 December 2025. Orders [55] The orders of the Appeal Tribunal are as follows: (a) The applicant has leave to appeal. (b) The appeal is allowed. (c) The decision of the Tribunal of 9 January 2025 is set aside. (d) The respondent has leave to appeal in the cross-appeal. (e) The appeal is allowed. (f) The applicant must pay the respondent the sum of $14,319.50 by 30 December 2025. -- 10 of 10 --