Cona v SM Painting Contractor Pty Ltd [2023] QCATA 60

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION Cona v SM Painting Contractor Pty Ltd [2023] QCATA 60 PARTIES: MICHEL CONA (applicant) v SM PAINTING CONTRACTOR PTY LTD (respondent) APPLICATION NO: APL033-22 ORIGINATING APPLICATION NO: MCDO 60289 of 2021 MATTER TYPE Appeals DELIVERED ON: 29 May 2023 HEARING DATE: 12 May 2023 HEARD AT: Brisbane DECISION OF: Dr J R Forbes ORDER: The application for leave to appeal is dismissed. CATCHWORDS: APPEAL – APPLICATION FOR LEAVE TO APPEAL – consumer and trader dispute – contract to perform interior repainting in residential premises - where consumer dissatisfied with colour matching – where tribunal satisfied that work done substantially complied with terms of contract – where payment for trader’s work unpaid – where consumer ordered to make payment in full – where consumer applies for leave to appeal – no appellable error shown Queensland Civil and Administrative Tribunal Rules 2009 (Qld) Form 7 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69 Drew v Bundaberg Regional Council [2011] QCA 359 Felton & Anor v Raine and Horne Real Estate [2011] QCATA 330 Fox v Percy (2003) 214 CLR 118 French v Bremner [2020] NSWCA 299 -- 1 of 6 -- JM v QFG and KG [2000] 1 Qd R 373 Lawless v The Queen (1979) 142 CLR 659 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257 R v Sharkey [2013] QCA 259 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 Steike v Pederick & Anor [2019] SASCFC 148 The Pot Man Pty Ltd v Reaoch [2011] QCATA 318 W (an infant) In Re [1971] AC 682 APPEARANCES & REPRESENTATION The applicant appeared in person For the respondent: Mr S Murphy, director Introduction [1] When a tradesman is engaged to repaint residential premises endowed with ‘feature walls’, there is always a risk that the client will complain that the colour chosen does not satisfactorily reproduce the pre-existing one. That is the problem here. [2] In January 2021 SM Painting Contractor Pty Ltd (‘Murphy’)1 quoted the applicant for leave (‘Cona’) $4,796 to ‘sand down, fill and gap imperfections on the walls, doors and trims of a home unit ‘with feature walls’ at Parkland Boulevarde, Brisbane central (‘the Unit’). [3] Cona accepted that quotation, stipulating (per agent) that ‘the feature walls [be] restored to their original condition with the same paint colour and texture.’2 Murphy does not question that requirement, but contends that ‘the Work Order did not specify ‘the paint colour name.3 ‘In accordance with our (and industry) practice , where we are requested to restore walls to their original colour and texture, if no colour name/formula is provided … we take a clean and accurate sample off the wall and have that colour matched.’4 So Murphy relied on a sample of the existing paint, as analysed by a Dulux dealer. Fresh evidence? [4] First, there is a question of fresh evidence – an exception to the rule that additional evidence is not admitted on appeal. By no means is every afterthought admissible as fresh evidence. Evidence is ‘fresh’ if it is evidence which either did not exist at the time of the 1 In practice SMP is operated by painter Shane Murphy. 2 Parklands Apartments (as agent for Cona) 22 January 2021. 3 Submissions of SMP filed 16 May 2022 paragraph 1(a)(i). 4 Email Murphy to Cona 29 March 2021. -- 2 of 6 -- trial, or which could not with reasonable diligence then be discovered.5 Further, it must appear that if it were admitted it would be credible, and would probably have produced a different result.6 These rules reflect the public interest in finality of litigation.7 [5] Cona complains that following his filing of a Response8: I did not receive any communication from or through QCAT as to the filing of any statements, affidavits or supporting documents between the time when I filed the Form 79 and the time when I received notice that there would be a hearing of this matter.10 I did not receive any communication through or from QCAT during that time requiring or advising me to file any statements, affidavits or supporting evidence.11 I understood that the hearing would give me the opportunity to present my evidence and a chronology of events and colour photographs and colour swatches.12 I received notice that the hearing would be by telephone and I was not able or requested to present any evidence in those circumstances other than what I was able to say on the telephone.13 In all of the circumstances, I have been denied the opportunity to fully present the case that I would have when it was heard.14 [6] As Cona recognises,15 the Form 7 instructions explicitly state: ‘A response … is not proof of those facts [on which you rely]. You will do that later’. This is simply a recognition of the legal axiom: ‘Pleadings are not evidence’, or in ordinary parlance: ‘Assertions are not proof’. A party who is unsure of the form’s meaning has only to ask registry staff to interpret it. [7] Given that helpful reminder, Cona’s waiting for QCAT to ‘advise me to file any … supporting evidence’ misconceives the relationship between a party and the tribunal. It is not the tribunal’s duty or function to prepare a party’s case. As a former President of QCAT pointed out more than once: It is common knowledge that [QCAT’s] jurisdiction is a busy and demanding one, in which parties are expected to present their own cases, and act in their own interests ... The legislation, and the demands upon public resources which fund QCAT necessarily impose an expectation and an obligation upon a party that it will ensure that it acts in its own best interests, or accept the consequences.16 QCAT’s resources ... serve, as the High Court has recently observed, the public as a whole and not merely the parties to proceedings … The QCAT statutory regime itself places obligations upon parties to take care in their dealings with the Tribunal and to act in their own best interests.17 5 R v Sharkey [2013] QCA 259 at [8]; Lawless v The Queen (1979) 142 CLR 659 at 674-676. 6 French v Bremner [2020] NSWCA 299 at [7]. 7 Steike v Pederick & Anor [2019] SASCFC 148 at [7]. 8 The Response was filed on 16 June 2021. 9 I.e. the Response. 10 Cona’s submissions filed on 26 April 2022 paragraph 1(c). 11 Ibid paragraph 1(d). 12 Ibid paragraph 1(e). 13 Ibid paragraph 1(f). 14 Ibid paragraph 1(g). 15 Ibid paragraph 1(b). 16 The Pot Man Pty Ltd v Reaoch [2011] QCATA 318 at [9] and [10] (emphasis added). 17 Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69 at [9]-[10]. -- 3 of 6 -- [8] The notice of hearing was issued a month before the trial date.18 There is no evidence that the material Cona now wishes to adduce could not, with reasonable diligence, have been assembled in that intervening period, or indeed earlier. Its non-assembly was due to Cona’s misunderstanding or neglect of the advice on the Response form. [9] As Cona suggests, a hearing by telephone presents its own difficulties. A hearing in that manner was necessitated by the Covid pandemic. The special restrictions imposed on the tribunal by that emergency were still in force at the time of the hearing, and for the best part of a year thereafter.19 However, Cona was free to file affidavits, ‘colour swatches’ or photographs prior to the hearing, and to explain or comment upon them by telephone. No error of law is involved. [10] The material now sought to be adduced is not fresh evidence as defined in authorities cited above.20 Accordingly the application to tender it is dismissed. The cases as presented [11] I move now to the parties’ cases as presented and adjudicated. [12] On 30 April 2021 Murphy initiated these proceedings, claiming $4,576 for work and materials, and a filing fee. Cona denies liability, alleging that the work was not completed ‘as per the work order’.21 But otherwise, he agrees, the work was satisfactory.22 [13] The tribunal received scant assistance from the parties. In particular, as the adjudicator justifiably23 complained, there were simply no ‘before and after’ photographs.24 Cona was unhelpful: ‘I’ve got photos of before. I’m not sure if I’ve got photos of after … it does not appear I’ve got photos of after.’25 However, even the ‘before’ photographs were not produced at the trial. In a case that was all about colours, the tribunal did not have the benefit of colour images. [14] Cona admits that he did not provide a colour sample. Murphy’s evidence is that he took a sample of the feature wall paint to a Dulux paint vendor.26 The latter, presumably using a modern instrument for exact colour matching, supplied paint of the same colour, which Murphy then used in the Unit.27 [15] However, according to Cona, the new paint was not a true match to the old28. ‘It’s definitely a different colour, and this makes the unit much darker’.29 It was his ‘gut 18 Issued on 20 December 2021; the trial took place on 257 January 2020. 19 QCAT President’s report, written September 2022 page 5: ‘As I write this … we are eagerly anticipating a return, substantially, to in-person hearings from mid-October 2022.’ The hearing was on 24 January 2022. 20 See paragraph [4] above. 21 Response filed 15 June 2021. 22 T page 5 lines 30-32. 23 T page 6 line 5. 24 Transcript of trial 24 January 2022 (‘T’) page 4 line 29: ‘It seems a bit amazing nobody’s got any photos here’. See also page 4 line 33, page 14 lines 35-38. 25 T page 5 lines 21-23. 26 T page 3 line 38; email Murphy to Cona 29 March 2021. 27 T page 4 lines 18-26. 28 T page 2 lines 34-37. 29 T page 5 lines 43-44 (Cona). -- 4 of 6 -- feeling’, he told Murphy, that ‘that something doesn’t feel the same as before.’30 So he declined to pay Murphy’s bill.31 [16] Murphy insists that the new paintwork is in the same colour, and has the same texture as the old.32 ‘I don’t agree that it didn’t match where there was good lighting’.33 While Cona, for his part, while Cona did not resile from his view that the new paint did not match then old, he conceded that ‘the paint looked different on different corners depending if there is more or less light’.34 [17] The adjudicator was resigned to basing his decision on less than adequate evidence: ‘I can only proceed on the evidence before me … [there was] perhaps, a slight difference in the shade but I’m prepared to accept the methodology adopted by [Murphy] to get the shade as, well, near as possible, if not spot on.’35 [The job] was done in a satisfactory manner if not exact, close enough to that which before me.’ He was ‘prepared to accept [that the work] was done in a satisfactory manner and probably, if not exact, certainly close enough to that which was the original colour’.36 In a word, he preferred Murphy’s evidence to Cona’s. He delicately expressed a view on credit: ‘I did ask [Cona] was there a great difference in the shade, and I got the impression I couldn’t get quite a straight answer’.37 [18] Classically, this is a case that turns on findings of fact and credit rather than law. And such findings are the prerogative of the primary judge; that is his function.38 An application for leave to appeal is not an opportunity to re-try the case presented at trial, or to `second guess’ the primary decision-maker. Rather, it is limited to a search for errors of law, if any, that may have resulted in injustice.39 It is not nearly enough for an applicant for leave to entertain a subjective feeling of dissatisfaction. It is not an error of law to prefer one party’s version to the other, or to give less weight to evidence than a party thinks it should receive. [19] Findings of fact will not normally be disturbed even if another reasonable view is available.40 Where reasonable minds may differ, a decision cannot properly be called erroneous, simply because one conclusion has been preferred to another possible view.41 It appears to me that a factual conclusion cannot be treated as infected by legal error unless it is supported by no evidence whatever or unless it is clear, beyond serious 30 T page 7 lines 11-12. 31 T page 2 line 15. 32 T page 3 lines 20-23. 33 T page 8 line 34 (Murphy). 34 T page 8 lines 41-42. 35 T page 14 line 1. 36 T page 15, lines 5-6. 37 T page 14 line 32. 38 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151. 39 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257 at [6]; Drew v Bundaberg Regional Council [2011] QCA 359 at [18]; Felton & Anor v Raine and Horne Real Estate [2011] QCATA 330 at [19]. 40 Fox v Percy (2003) 214 CLR 118 at 125-126. 41 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at [131]; In Re W (an infant) [1971] AC 682 at 700 per Lord Hailsham; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025. -- 5 of 6 -- argument, that it is wrong. That this Court merely disagrees with a factual view of a tribunal does not show that a decision based on it is legally erroneous.42 [20] This application for leave to appeal does not demonstrate any appellable error, and I discern none. Accordingly the application must be dismissed. ORDER The application for leave to appeal is dismissed. 42 JM v QFG and KG [2000] 1 Qd R 373 at 391 per Pincus JA. -- 6 of 6 --