Duffill v Karingal Pty Ltd t/as The Marble Man [2023] QCATA 114

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Duffill v Karingal Pty Ltd t/as The Marble Man ABN 7601914824 [2023] QCATA 114 PARTIES: MARITZA DUFFILL AND MAURICE DUFFILL (appellant/appellant) v KARINGAL PTY LTD TRADING AS THE MARBLE MAN ABN 7601914824 (respondent) APPLICATION NO/S: APL349-22 ORIGINATING APPLICATION NO/S: MCDO263/22 MATTER TYPE: Appeals DELIVERED ON: 1 September 2023 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Richard Oliver ORDERS: The decision of the tribunal dated 4 November 2022 is set aside, and in lieu thereof. The applicants pay the respondent the sum of $2,160.00 by 29 September 2022. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES –CONTRACT – where applicant contracted with the respondent to carry out marble restoration work – where applicants failed to pay the final instalment – where applicants’ allege work incomplete or sub-standard – where respondent commenced a minor civil dispute proceeding to recover the balance owed under the contract – whether findings as to incomplete or sub-standard work open on the evidence – whether sufficient weight given to the evidence of the applicants Queensland Civil and Administrative Tribunal Act 209 s 143(3)(a)(i) Rintoul v State of Queensland & Ors [2018] QCA 20 Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22 Terera v Clifford [2017] QCA 181 -- 1 of 6 -- 2 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 respondent carries on the business of marble repair and restoration. In April 2021 the applicants entered into a contract with the respondent to carry out repairs and restoration of marble surfaces in various part of their house at Runaway Bay. A quote/proposal dated 12 April 2021 was prepared, which had a breakdown of the cost for the specific areas of the house. The total cost then was $16,886.00 but with variations during the job, the price increased. [2] Work commenced and progress payments were made during the course of the work. The final part of the work was the restoration of the front entry and steps of the house. The specific cost for this component was $4,245.00 which included $600 for moving large pots during the work. This work was carried out on Friday 27 August 2021. It was not inspected until a day or so after the work by Mr Duffill. He was not happy with the extent or the finish of the work undertaken. He wrote an email of complaint to the respondent on Sunday 29 August 2021 at 8.05am. [3] In the email he recites the breakdown of the cost of this part of the work, $4,245.00, then lists the litany of complaints by reference to photos attached to the email. The email relevantly goes onto say: You can see by the attached the job has not been properly completed. …….. As matters stand I consider Marble Man has not completed the element of the Contract your early rectification would be much appreciated. [4] There was no response from the respondent until the following Tuesday evening, and then only by text message. Mr Duffill says he did not see the text until at least the following day. As he had not heard from the respondent before receipt of the text, he engaged another contractor to inspect and quote to carry out the work the respondent was supposed to do, on the applicant’s case, under the contract. This was Stone Restoration. They did the work for the same price as that which was to be charged by the respondent. Mr Duffill says it took they 2.5 days to do this work. [5] Subsequently on 15 September 2021 the respondent issued an invoice for $5,565.00 being the outstanding balance for the work at the front of the house, plus some work for additional arears. For the front of the house the invoiced amount was $3,585.00. The applicants did not pay the invoice. There were subsequent emails from both parties with attempts to come to some agreement but unfortunately that was not successful. [6] On 15 March 2022 the respondent commenced a minor civil dispute proceeding in the Tribunal to recover the outstanding amount of $5,688.77 it says was owed by the applicants plus the filing fee of $127,50. A response was filed disputing the claim on the grounds set out above, but also at best, the only amount that was recoverable was $4,245.00 on the basis that the contract price was $16,866.00 rather that the total amount claimed in the final invoice of $18,206.00 less the agreed amount paid of $12,641.00. -- 2 of 6 -- 3 [7] The application came on for hearing on 1 November 2022. The learned adjudicator took further evidence from both parties, in addition to the material filed. She then reserved her decision and delivered it on 4 November 2022 finding in favour of the respondent and ordered the applicants to pay the sum of $5,745.00 to the respondent. [8] On 23 November 2022 the applicants filed an application for leave to appeal or appeal. The grounds of appeal are in brief compass asserting the learned adjudicator erred in law and fact. More particularly that reasons the respondent was awarded the amount were not fair and just as she did not consider evidence admitted by the applicant. Also the amount awarded “was not quantified and/or supported, ie: (sic) discount not taken into consideration.” Reliance is also placed on the submission attached to the application which is in much more detail. [9] As this is an appeal brought under s 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 in respect of a decision in a proceeding for minor civil dispute, an appeal may be made only if the party has obtained leave of the Tribunal. 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.1 Further in Rintoul v State of Queensland & Ors [2018] QCA 20 at [10] the Court of Appeal reiterated the general principles: The principles governing a grant of leave to appeal are well-established. In short, an applicant for leave to appeal must show: (a) the appeal is necessary to correct a substantial injustice; (b) there is a reasonable argument that there is an error to be corrected. There must be reasonable prospects of success to warrant a grant of leave. Therefore, in deciding whether to grant leave to appeal the Court usually makes some preliminary assessment of the prospects of the proposed appeal. [10] Also, the learned adjudicator’s findings of fact will not be disturbed having regard to the general principles laid down by the High Court. The appeal is not another opportunity for the parties to re-argue the case that was before the original decision maker. The findings of fact made by the original decision maker will not be disturbed unless the findings were not open on the evidence before the Tribunal. The appeal tribunal will only disturb a finding of fact if there is good reason to do so, as the High Court said in Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22 at [43]: A court of appeal conducting an appeal by way of rehearing is bound to conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings2. But a court of appeal should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by "incontrovertible facts or uncontested testimony", or they are "glaringly improbable" or "contrary to compelling inferences". [footnotes omitted]. 1 Terera & Anor v Clifford [2017] QCA 181. -- 3 of 6 -- 4 [11] Before dealing with the grounds of appeal it is useful to have regard to the learned adjudicator’s findings of fact. (a) Having considered the evidence as to the work carried out, variations and payments she concluded that $5,556.00 remained owning under the contract.3 (b) Mr Duffill or his wife signed the ‘release notice’ on 6 August 2021 and 28 August 2021 and was not persuaded that Mr Duffill did not see the work before the sign off on 28 August 2021.4 (c) The applicant responded to Mr Duffill’s email of 29 August 2021 as deposed to in evidence filed in support of the application, that is firstly the text message on Tuesday evening 31 August 2021. Followed up with an email with the invoice on 27 September 2021.5 (d) She found, impliedly, that the work the subject of the dispute had been carried out. [12] However, despite the respondent asserting that the work was completed there seemed to be an acceptance by the respondent of the applicants’ complaints about the work and the main issue in the proceeding is the applicants’ failure to allow the respondent to return to site to inspect and rectify. When questioned by the learned adjudicator, Mr Jarrett for the respondent said: The key submission is that we – there was an issue raised, and we weren’t given the opportunity to address that issue. We completed the works and we just wanted an opportunity, if there was something, advise that, hey, something’s wrong. We wanted that opportunity to go back and rectify our works.6 [13] Later in the hearing, Mr Roberts, the principal of the respondent also raised the same issue about not being able to return to site. Only that we – you know, we’ve been operating for 30 years. I’ve never not had an opportunity to go in and fix something up at the end or, you know, try and get a customer happy at the end of the day. ….in this case I’ve never had - never not had the opportunity to go and fix up a job at the end of it. [14] He then went onto reiterate that the respondent completed all the work. The front section was “the end of the job”.7 [15] However, other than a general statement to say that the work was completed, the respondent led no evidence about what was actually done, how it was done, or who did it. This is specifically relied upon in the applicant’s submissions in support of the appeal.8 This general statement is in contrast to the specific allegations made by the applicants’ in their statement in support of the response. That included the allegation that at 7:15am a young man representing the respondent arrived at the property to commence work on the front entry and stairs. Also the particulars of the complaint in the email sent on 28 August 2021. 3 Reasons page 4 line 25 4 Ibid page 5 lines 26 – 35 however the date of the Final Acceptance is 26 August 2021 5 Ibid page 5 line 45 6 Transcript page 12 line 25 7 Transcript page 23 line 14 – 20. 8 Submissions filed 12 January 2023 paragraph 5 -- 4 of 6 -- 5 [16] It is of course appreciated that the respondent did not see the disputed area before the work was undertaken by The Stone Restoration, but photographs of the work were produced to which the respondent made no comment. The effect of this is that in the absence of any evidence to the contrary it is difficult see how Mr Duffill’s evidence as to the finish of the front area could be rejected. [17] The reasons addressed this issue by reference to an absence of any expert evidence produced by the applicants to support the claim that the work was not completed and /or not properly completed by the respondent and was not up to standard. The difficulty with this conclusion is firstly, the respondent did not take issue with or rely on the absence of expert evidence in argument. Secondly, as already alluded to, there seemed to be an acceptance of defective or incomplete work by the respondent and no issue was taken with the photographs.9 Thirdly, as the photographs were the only evidence of the finish they were corroboration of the applicant’s complaints and not taken into account. [18] The applicant takes up these very points in the submissions in support of the appeal. The focus of the decision seemed to be on the failure of the applicant to give the respondent an opportunity to return to site to address any concerns the applicant’s had about the standard of work. This is not a defence to the applicant’s claim. [19] The email complaint of 28 August 2021 put the respondent on notice of the complaints. As there was no response from the respondent the applicants, by their conduct terminated the contract by engaging and alternate contractor to do the work. There is no dispute that The Stones Restoration did the work particularised in the invoice. [20] The question then is whether the termination by the Duffills was lawful, and gave rise to a damages claim against the respondent. This is of course dependant on whether the findings of fact by the learned adjudicator were open on the evidence before her. If they were, then the termination would be a repudiation by the Duffills because she found that the work under the contract was completed by the respondent. [21] However, it is evident from the reasons that not all of the evidence referred to above was considered in coming to that conclusion. There was no reference to the photographs which depicted the finished product, substandard on the applicants’ case, nor the fact that the work was not inspected by the respondent at the conclusion of the job. [22] The video evidence of the worker brushing the surface was given no weight mainly because it was not produced and there was no evidence of the day it was taken. As to this, Mr Duffill did say that he viewed the video and it depicted the work being done the subject of the contract. The only reasonable inference that can be drawn from this evidence is that it is evidence of work being done on the last day of the job. It does not go directly to the quality of the work without more evidence, but is consistent with the photographs. In the end the video evidence itself does not carry too much weight as to the quality of the finished product, but there was no reason to reject his evidence on this point, particularly when there was no evidence to the contrary as to the methodology as to how the work would have been carried out in any event. 9 Ibid paragraph 10 -- 5 of 6 -- 6 [23] There is no basis to interfere with the learned adjudicator’s finding of fact as to the signature on the release document. The learned adjudicator noted Mr Duffill’s equivocation about this, but of importance the respondent did not lead any evidence as to the circumstances of the signing of the release, or the time of signing, just that it was signed and dated 26 August 2021. Given the dispute about the work, it is reasonable to expect some evidence about a conversation with either Mr Duffill or Mrs Duffill about being satisfied with the work when the document was signed. Mr Duffill concedes that if he did sign it, it was in the morning before going off to work. Even so, if the work is in fact sub-standard or even defective, the release document does not remedy that unless there is an acknowledgment of the sub-standard work on the release [24] The respondent received the complaint email first thing on the Monday morning, the 30th August. A representative could have attended the premises to inspect that day or the following day, or even before the rectification work commenced on 9 September 2021. There was not response to the email, which one would reasonable expect given the number of complaints, instead a text message was sent on Tuesday evening. Apart from the signed release document, dated 26 August 2021 there is no evidence from the respondent as to the quality of the work undertaken. [25] When all of this evidence is considered, the only reasonable conclusion, is that there was no basis to reject the evidence of Mr Duffill. In other words the conclusions reached by the learned adjudicator about the quality of the subject work were inconsistent with the evidence before her. [26] This is a basis upon which it is appropriate to give leave to appeal. Therefore, insofar as the learned adjudicator’s decision related to the front area work it should be set aside. [27] The appeal also relates to the total amount of the final invoice which was an amount greater than the original quote. This extra work was discussed during the hearing.10 There was no direct challenge from Mr Duffill to these extra charges during the hearing. The learned adjudicator accepted this evidence and there is no reason to disturb those findings. [28] The total charge for the disputed work by the respondent was $3,585.00. the total judgment amount was $5,745.00. Given the findings above there should be a credit to the applicants for $3,585.00 resulting in a reduction of the judgment amount to $2,160.00. [29] Therefore, the appeal will be allowed. The decision of the learned adjudicator will be set aside and in lieu thereof there be an order that the applicants pay the respondent $2,160,00. 10 Transcript page 15 line 25 -- 6 of 6 --