Finn’s Transport Pty Ltd v Burley [2022] QCATA 11

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Finn’s Transport Pty Ltd v Burley [2022] QCATA 11 PARTIES: FINN’S TRANSPORT PTY LTD (applicant/appellant) v LYNETTE JOY BURLEY AND NEIL SIDNEY BURLEY (respondents) APPLICATION NO/S: APL104-20 ORIGINATING APPLICATION NO/S: Q199/19 Mackay MATTER TYPE: Appeals DELIVERED ON: 2 February 2022 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judicial Member D J McGill SC ORDERS: Leave to appeal from the decision of the Tribunal of 23 March 2020 refused. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH FINDINGS – FUNCTION OF APPEAL TRIBUNAL – WHERE CONFLICT OF EVIDENCE – minor civil debt claim – leave to appeal – whether grounds for leave shown. Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 143(3)(a)(i) Campbell v Queensland Building and Construction Commission [2021] QCATA 34 Crime and Corruption Commission v Lee [2019] QCATA 38 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: Self-represented 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] This is an application for leave to appeal from the decision of a Member of the Tribunal in a Minor Civil Debt claim. The respondents are the owners of an old mini- bus which they wanted fitted out as a motor home. They spoke to the person running the appellant’s business about having some work done on it, starting with repairing rusted parts of the body. Some work was done and some payments were made by the respondents, but they were unhappy with the quality of the workmanship, and brought proceedings in the Tribunal to recover $9,198 of the money they had paid. The appellant resisted that, and claimed that they were liable to pay an additional $2,127.54. [2] The Member held that the respondents were entitled to recover $4,844.34, and that they were not liable for the further amount claimed by the appellant. It is from that decision that the appellant seeks leave to appeal. An application for a stay of the decision pending the appeal was rejected by Daubney J, the former President of the Tribunal, on 4 August 2020. [3] Because this matter was a minor civil dispute, leave is required to appeal to the Appeal Tribunal.1 In general, 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.2 In deciding whether to grant leave to appeal, it is relevant to consider that the proceeding was a minor civil dispute, and the obligation on the Tribunal was to make orders it considered to be fair and equitable to the parties to the proceeding in order to resolve the dispute: QCAT Act s 13(1). The Tribunal was also required to comply with the QCAT Act s 28 and s 29. Decision of the Member [4] The Member found that the appellant company was controlled by a Mr Finn, but he had nothing to do with the relevant business, which was run by a Mr Lenahan, apparently under a power of attorney from Mr Finn: [5]. An application for Mr Lenahan to represent the appellant in the proceedings was refused. Mr Finn appeared at the hearing; the Member said he did not engage in a meaningful way: [6]. Mr Lenahan gave evidence, as did the respondents: [7]. The Member was not impressed with the demeanour of Mr Lenehan [42], although she did accept some of his evidence. She did not accept his evidence that he did not receive a payment by bank cheque,3 or his evidence that the rust removal work was properly done. [5] In 2017 the respondents brought the bus to the appellant with a “wish list” for repairs and modifications. There were some discussions. In 2018 the respondents were asked to bring the bus in again, and work started on it. Because of the extent of the rust problem, and the nature of the consequential repairs, this was to be done first, and charged for on an hourly basis, to be paid as the work was done: [12]. As well, a bed was installed, with a frame so that it could be lifted to access a storage area below: 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”) s 142(3)(a)(i). 2 Crime and Corruption Commission v Lee [2019] QCATA 38 at [12], citing appellate authority. See also Campbell v Queensland Building and Construction Commission [2021] QCATA 34 at [17]. 3 It must have been received, because the appellant’s invoice Exhibit 5 in effect gave credit for it. -- 2 of 4 -- 3 [32]. Some fairly preliminary work was done on the electrical system inside the bus, and new batteries were supplied. A hole was cut in the roof to accommodate an air- conditioning unit; this was the only work properly documented, by way of a signed email: [10], [11]; Exhibit 3. The Member said documentation was poor, as was communication between the parties. [6] The appellant issued three invoices for work done, which the Member had difficulty reconciling. There was a lack of clarity about payments made, but she accepted that a total of $13,115.33 had been paid: [58]. Exhibit 5 was a revised invoice, issued after giving credit for a payment made and adjusting some prices: [16]. This was for $2,127.54, and remained unpaid: [59]. The respondents had collected the bus before the appellant had finished the work it was doing, after a payment had been made, on the basis that it would be returned later for the work to continue; but it never was.4 [7] The respondents complained about the rust repair, which they alleged was not properly done; the way in which the bed was constructed which made lifting impractical; and the quality of the electrical work. They produced a written opinion from some panel beaters that the quality of the rust repair was very poor and the cost excessive (Exhibit 9), an estimate from another repairer for rust repair (Exhibit 10), and some photos take some time after the bus was collected, which the Member regarded as showing poor quality work.5 On the basis of this, the Member accepted that there had been a failure by the appellant to comply with the obligation, implied by the Australian Consumer Law s 60, to do the work with due care and skill. She assessed damages at $5,000 plus GST, on the basis of the estimate in Exhibit 9, which was lower than the quote in Exhibit 10: [47]. [8] As to the bed, the Member said that there was a lack of clarity as to just what the respondents required, and accepted Mr Lenahan’s evidence that there were more than one visit to the bus to inspect the bed during the progress of the work on it, without complaint about what was being done: [49]. In those circumstances, the Member rejected the complaints about the basic structure of the bed, and allowed only a small amount ($276) for defective workmanship: [51]. [9] The Member allowed the respondents the amount they had been charged for two deep cell batteries which had not been supplied, deducting $25 for an ordinary battery which had been provided, and an amount of $211.75 paid for repair work undertaken to the wiring; otherwise this part of the claim was regarded as not proved: [53]. The Member also allowed the respondents the amount of the Tribunal filing fee, $345.80: [67]. The total damages, $6,626,6 was reduced by the amount outstanding on the last invoice, Exhibit 5, so the appellant recovered this amount. Application for leave to appeal [10] The information as to the basis on which the appellant sought to challenge the decision of the Member in the application for leave to appeal was extremely scant, saying essentially that the details put before the court (sic) are incorrect and unsafe. The appellant sought an order that the respondents return the bus to their premises for inspection, with the appellant arranging to have machinery inspectors on hand. In the 4 The respondents complained that work they could not afford was done without authorisation: p 1-27. Mr Lenahan complained that the respondents did not agree on what was to be done: p 1-30. 5 Reasons, paragraphs [26], [45], [46]. 6 $5,500 + $276 + $850 (with some rounding) = $6,626. -- 3 of 4 -- 4 section of the form to explain why the decision should be stayed, the appellant complained that the respondents lied, and gave a version of events different from that found by the Member. [11] The appellant filed a document headed Grounds for Appeal and described in the index as a “Letter of Response” which essentially sets out various factual matters. To some extent this is consistent with the findings of the Member: that the rust repair was to be done first at an hourly rate, that the respondents approved the cutting of the hole for the air-conditioner, that the bus was returned to the respondents before work had been completed for personal reasons and before all amounts charged had been paid. Much of it is irrelevant: that the appellant is involved in other litigation with other people; that the layout the respondents wanted originally was not practical; that the appellant had been unable to arrange an independent inspection of the vehicle; that it had not received copies of quotes from others; and reference to other work the appellant was doing or had done. [12] The appellant said that the bus was released on the basis that the respondents agreed to return it to enable the work to be finished, and that much of the work was unfinished at that stage, the bus just being made safe to drive. The Member considered whether the respondents were required to return the bus to the appellant to enable it to finish the work, or rectify defective workmanship, and held that under the Australian Consumer Law this was not required. That view of the law has not been shown to be incorrect. The Member assessed damages on the basis that the work had not been completed, and the work done was in some respects defective. Only a minor amount was allowed for the bed and the electrical work, the latter largely because of the batteries not supplied, an issue not addressed by the appellant. [13] In relation to the rust, this was an assessment of damages on the basis that the existing work was defective, and based on apparently independent opinions. It would have been open for the appellant to have applied before the hearing to have an independent expert inspect the bus and provide a report to the Tribunal,7 but that step was not taken by the appellant, probably because it did not have legal advice. That does not involve any error by the Member. [14] The approach of the Member had the effect that, in substance and subject to a small set-off, the appellant was paid all of the amounts it charged the respondents.8 In a number of respects the decision of the Member was favourable to the appellant; the respondents actually recovered only a little over half of the amount they had claimed. The Member faced a difficult hearing with litigants in person who were argumentative. The reasons for the decision are detailed and thorough, and at no point obviously erroneous. They have certainly not been shown to be erroneous by anything put forward by the appellant. [15] In the circumstances the appellant has failed to show good reason why the Appeal Tribunal should grant leave to appeal. The test referred to earlier has not been satisfied. Leave to appeal is therefore refused. 7 Under the QCAT Act, s 62. 8 Despite the respondents’ complaint that work had been done they did not authorise: transcript p 1-27. -- 4 of 4 --