Bob Trask Group Pty Ltd ACN 071 174 984 v Pacific Home Solutions [2023] QCATA 105

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Bob Trask Group Pty Ltd ACN 071 174 984 v Pacific Home Solutions [2023] QCATA 105 PARTIES: BOB TRASK GROUP PTY LTD ACN 071 174 984 (appellant) v PACIFIC HOME SOLUTIONS (respondents) APPLICATION NO: APL325-21 ORIGINATING APPLICATION NO: MCDO1014/20 MATTER TYPE: Appeals DELIVERED ON: 8 March 2023 HEARING DATE: Heard on the papers HEARD AT: Brisbane DECISION OF: Member JR McNamara ORDERS: The Application for leave to appeal, or appeal is dismissed. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the tribunal made orders for the appellant to pay the commission fee – where the appellant seeks leave to appeal and appeal of the decision in a Minor Civil Dispute – where the appellant alleges that the tribunal misunderstood the facts of the case – where the appellant alleges that constant interruptions in the hearing by the respondent led to the misunderstanding – where the appellant alleges deceptive and misleading conduct by the respondent – whether the appellant should be allowed to appeal the decision Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142 Pickering v McArthur [2005] QCA 294 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) -- 1 of 4 -- 2 REASONS FOR DECISION [1] Pacific Home Solutions (PHS) describe themselves as “marketers”. Their clients are persons wishing to build a home. They do the work leading to a contract being entered into for the construction of the home with a builder, usually from their “panel of builders”. They say that they “on sell the contract” 1 to the builder and they receive a commission from the builder on agreed terms. [2] In this case their client “had a contract that they’d pulled out from a previous builder”. PHS then met with the Bob Trask Group Pty Ltd (BTG) regarding the build. They say that they “offered Bob Trask Group the build contract on behalf of our client”. The BTG engaged Sunvista Homes to actually build the home. In evidence before the tribunal on 28 October 2021 Mr Wrighthall for PHS said: “There was no actual formalised contract between us2. It was done under goodwill, email trails, acceptance of offers and proceeded along a trust and faith procedure”. [3] PHS relied on email correspondence dated 3 April 2020 to support the assertion that a contract was entered into. The email from PHS to the BTG specifies a "Contract price for client and bank purposes”; a Preliminary Process BA fee “paid by client to PHS”; PHS commission in the amount of $8,555; and a “Builder price incl margin”. In the hearing Mr Wrighthall said the PHS commission “is our fee for awarding the contract to the Bob Trask Group”. A tax invoice issued by PHS to the BTG with a “due date” of 20 July 2020 was for the amount of $8,500.3 The BTG did not pay the commission fee. That non-payment was the subject of the dispute. [4] On 21 August 2020, PHS filed an application with the tribunal seeking payment of the commission, interest as determined by the tribunal and the filing fee for the application. A second applicant was also on the application but withdrew before the hearing. [5] Following an unsuccessful mediation on 6 May 2021, the hearing occurred in person on 28 October 2021. The evidence and the hearing [6] The reason for non-payment given in evidence by Mr Bob Trask for the BTG was that in the course of proceeding with the build “the deal totally morphed into something that didn’t look like – anything like I’d originally agreed to …”. He said, “extra things were added into the house … the client was told they could choose any brick they wanted etc”. He said that these “inclusions” were not what was in the specifications. These “inclusions” according to Mr Trask resulted in additional costs. [7] Mr Trask asserted that it was Mr Wrighthall (PHS) who was responsible for advising the clients that the “inclusions” were in the specifications. Email correspondence dated 11 June 2020 from the builder Sunvista Homes to BTG appears to corroborate this assertion. In response to the email from Sunvista Homes, BTG stated clearly that anything outside the specifications is extra, and no negotiation could be entered into. [8] Despite this, on 15 June 2020 an email from Sunvista Homes to BTG informed BTG that the “client” had been informed that the cost of the variations (inclusions) was 1 In evidence this was described as “offer the build contract to a builder on their client’s behalf”. 2 Between PHS and the BTG. 3 It is unclear why the invoice sought $8,500 rather than $8,555. -- 2 of 4 -- 3 $12,500 and that the client had informed Sunvista Homes that “they could not afford it”. Sunvista Homes asked BTG to “take care of this with David (Wrighthall) from Pacific Homes Solutions”. In evidence, Mr Trask said that he “chose to keep the clients happy and pay the extras”. He said, “there was an amount of money which cost on top of what we originally agreed to which I had to cover”. [9] Upon consideration of the material put forward by both parties and the evidence presented at the hearing, the Adjudicator determined that PHS was entitled to recover the amounts claimed. An order was made for BTG to pay $8,500 as the commission fee together with court filing fees of $352, totalling $8,852 within 21 days. The application [10] On 14 November 2021, BTG filed an application for leave to appeal or appeal the decision on the basis that the decision made was incorrect for three reasons. The first, because the Adjudicator was having trouble understanding the case. The second, because Mr Wrighthall was continuously interrupting Mr Trask and not allowing him to be heard by the Adjudicator. The third, that it is unlawful to award the decision to a person or company that has conducted themselves in a deceptive and misleading manner. Should an appeal be allowed? [11] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.4 Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.5 [12] BTG says the decision of the Adjudicator was incorrect because the Adjudicator had trouble understanding the case. The business relationships involved is multilayered and not capable of being immediately understood on the filed material alone. I have had the luxury of spending time to read all the material that was before the Adjudicator. In addition, I have had the assistance of the transcript of the hearing to aid in my understanding of the facts, the position of the parties, and the reasons given by the Adjudicator. It appears to me that at the time of delivering the reasons for the decision the Adjudicator had a good understanding of the dispute and the arguments advanced by the parties. I find no fault or error in the analysis undertaken and the reasons given for the decision made. [13] BTG says that the behaviour of the respondent in the hearing did not allow him to be heard by the Adjudicator. A reading of the transcript does suggest to me that Mr Wrighthall was impatient, aggressive, intolerant, and bullying in manner. The Adjudicator demonstrated some frustration in the hearing evidenced by asking Mr Wrighthall at one point to “shut up” in circumstances where that retort appears warranted. Having considered all the material, including the transcript of the hearing, in my view BTG received a fair hearing. The Adjudicator engaged with Mr Trask to clarify facts to ensure his position was understood. 4 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3)(a)(i). 5 Pickering v McArthur [2005] QCA 294 at [3]. -- 3 of 4 -- 4 [14] Finally, BTG says PHS should be denied relief because they conducted themselves in a deceptive and misleading way. Mr Trask alleges that Mr Wrighthall mislead the client regarding the “inclusions” to believe: “that the clients didn’t have to pay the builder on things that he’d promised”; and “… the clients were under the illusion they were getting all these extra things”6. [15] Mr Wrighthall says that Sunvista Homes confirmed in writing: “the job has proceeded and there’s been no extra charges and that is in the document right there”7. The Adjudicator asked Mr Trask if he had seen that correspondence, he said “No, I don’t need to”. The Adjudicator then quoted from the 20 July 2020 email correspondence from Sunvista which was copied to Mr Wrighthall: “I can confirm that the contract is still as per our original agreement with BTG”, “We have now sorted out all the outstanding issues with the client and build is on track”. The PHS invoice was issued to BTG that same day, 20 July 2020. [16] It appears to be agreed that there was no legal obligation to complete construction other than in accordance with the specifications. Mr Wrighthall, in discussions with the client, may have raised the client’s expectations regarding the specifications. Sunvista Homes and BTG were aware that the “inclusions” the client requested were more expensive than those in the specifications. The evidence disclosed that BTG did not want to have a dispute with the client over the cost of “inclusions” and nor did Sunvista Homes. Sunvista Homes wanted BTG to “sort it out” with PHS. [17] There appears to have been no active steps taken by BTG “to sort it out” with PHS before the works were undertaken, rather BTG paid the additional cost of the “inclusions”. No changes to the terms set out in the 3 April 2020 email from PHS to BTG were agreed or implied. The unilateral step taken by BTG was to withhold payment of the commission. [18] The decision-making process requires the assignation of weight to the evidence according to its credibility and probative value. The Adjudicator was aware of all the abovementioned facts and circumstances and was aware of the relationships and behaviours of the parties. Again, I find no fault or error in the analysis undertaken and the reasons given for the decision which was made. Order Application for leave to appeal, and appeal is dismissed. 6 T1-6, 35-38. 7 T1-9, 16-19. -- 4 of 4 --