Brian Maggen t/as Painters in Paradise v Vels [2021] QCATA 117

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Brian Maggen t/as Painters in Paradise v Vels [2021] QCATA 117 PARTIES: BRIAN MAGGEN T/AS PAINTERS IN PARADISE (applicant) V PETER VELS (respondent) APPLICATION NO/S: APL142-21 ORIGINATING APPLICATION NO/S: Q730/20 MATTER TYPE: Appeals DELIVERED ON: 27 September 2021 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Fitzpatrick ORDERS: The application for leave to appeal and appeal is dismissed. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where consumer dispute – painter damaged carpet – cost of replacement ordered – no account for betterment Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 13(1), s142(3) Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 Dearman v Dearman (1908) 7 CLR 549 Fankhauser & Anor v Mission Beach Property Management [2017] QCATA 65 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Hoad v Scone Motors Pty Ltd [1977] 1 NSWLR 88 House v R (1936) 55 CLR 499 Hyder Consulting (Aust Pty Ltd v Wilhwilhemsen Agency Pty Ltd [2001] NSWCA 313 Rodgers v Rodgers (1964) 114 CLR 608 -- 1 of 7 -- 2 The Gazelle (1844) 2 W Rob 279 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) REASONS FOR DECISION [1] This is an application for leave to appeal or appeal from a decision of an Adjudicator in the minor civil disputes jurisdiction of the Tribunal made on 15 April 2021. [2] Leave to appeal is required.1 [3] On appeal, legal factual or discretionary error must be demonstrated. An appeal does not involve re-argument of matters not accepted at the initial hearing. It is not sufficient that the Appeal Tribunal might come to a different conclusion if hearing the matter for the first time. Appellate tribunals will not usually set aside findings of fact on appeal if there is evidence capable of supporting the conclusions reached.2 [4] Leave to appeal will usually only be granted where there is a reasonable argument that the Tribunal’s decision is attended by error and the appeal is necessary to correct a substantial injustice caused by the error. Occasionally, leave is granted to determine at a higher level a question of general public interest.3 Decisions that turn on the facts of a particular case do not usually fall into this category. [5] The applicant does not characterise each ground of appeal as an error of law, error of fact or mixed error of fact and law but says that the appeal involves matters of law and fact. [6] I will address the grounds of appeal in determining whether leave to appeal should be granted. Factual background [7] The applicant was engaged to paint the walls of the respondent’s short-term rental unit in Surfers Paradise. It is not contested that during the job the applicant spilled paint on the carpet in the unit. It was unable to be cleaned. The respondent had the carpet and underlay replaced at a cost of $4,370.00 and recovered that amount in the minor civil disputes jurisdiction of the Tribunal. 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s142 (3). 2 Dearman v Dearman (1908) 7 CLR 549. 3 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389. -- 2 of 7 -- 3 Applicant’s grounds of appeal and submissions [8] The applicant has appealed the decision. The applicant complains that the respondent received a betterment by the replacement of a 15 year old carpet with a new carpet and underlay. The following are the grounds of appeal. First ground of appeal (a) There was no evidence to justify a finding that the carpet was “pristine”, “perfectly good” or of “excellent condition”. (b) The Member erred by finding without evidence that the carpet would not have required replacement at any time at all in the foreseeable future; and that any betterment by new for old replacement was justified in the circumstances. (c) Any order ought to have considered that the residual value of the carpet was at or near zero and this should have been considered in any award of compensation. Second ground of appeal (a) The Adjudicator did not account for depreciation by reducing the award by the full depreciable cost of the carpet to nil, following the procedure in Fankhauser & Anor v Mission Beach Property Management4. Fairness required that he do so. Third ground of appeal (a) The Adjudicator made no finding that the underlay was damaged or needed replacing. The Adjudicator’s discretion erred. [9] The applicant contends that the decision is not fair and equitable. The applicant seeks an order that the decision be overturned or that the award be substituted with an amount of nil or less than $4,370 taking into account the actual benefit of depreciation and the unjustifiable benefit of new underlay. [10] It is submitted that leave should be allowed so that the principles surrounding betterment can be properly considered. Respondent’s submissions [11] The respondent submits that: (a) the age of the carpet cannot be determined. The carpet would not have needed replacing in the near future but for the damage caused by the applicant. There was no finding that the carpet was 15 years old; (b) The Adjudicator rightly determined that any betterment was fair in the circumstances; 4 [2017] QCATA 65, [38]–[39]. -- 3 of 7 -- 4 (c) The residual dollar value of the carpet (which cannot be determined) is not relevant as the carpet has business value in that it allows the respondent to let the apartment; and (d) The evidence of the cleaner is that the paint had been left to soak into the carpet. From this it can be concluded that the underlay would also have been damaged and would need replacing. Decision of the Adjudicator [12] The Adjudicator gave a reasoned oral decision at the conclusion of the matter. Consideration of the grounds of appeal [13] As to the first ground of appeal, the Adjudicator had evidence before him as to the condition of the carpet. The Adjudicator was entitled to accept the evidence of the applicant that the carpet was in excellent condition before it was damaged by the respondent. The Adjudicator had reference during the course of the hearing to photographs of the carpet and a video of attempts by a professional cleaner to clean the carpet. The Adjudicator accepted that what appeared to the eye to be a perfectly presentable carpet was unacceptably damaged. [14] I consider that because of the finding as to the good condition of the carpet, the Adjudicator had a sufficient basis on which to conclude that although old, the carpet was serviceable. That is, it would not need replacement in the near future. [15] I consider that the finding as to the condition of the carpet and its serviceability was a proper basis (along with other considerations to which I will refer later), on which to conclude that betterment was justified in the circumstances. [16] I am satisfied that the Adjudicator’s findings were open on the evidence. [17] The applicant contends that a value of nil should have been attributed to the carpet. The Adjudicator addressed the point and found that would not be a fair and equitable outcome for the applicant as required under section 13(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). That finding was an exercise of the discretion of the Adjudicator, which should not be disturbed unless it can be shown to be clearly wrong, or the result is so unreasonable or plainly unjust that the Appeal Tribunal can infer that there has been a failure to properly exercise the discretion on the part of the Adjudicator.5 [18] I do not consider that the Adjudicator was wrong or that the result is so plainly unjust to the respondent that the ground of appeal should succeed. I will address the issue further with respect to the next ground of appeal. [19] In all, with respect to the first ground of appeal, I do not consider that the matters raised demonstrate an error causing substantial injustice such that leave to appeal should be granted. 5 House v R (1936) 55 CLR 499; Australian Coal and Shale Employees’ Federation v the Commonwealth (1953) 94 CLR 621, 627 confirmed in Rodgers v Rodgers (1964) 114 CLR 608. -- 4 of 7 -- 5 [20] As to the second ground of appeal, the applicant raises the question of whether the Adjudicator should have accounted for any betterment enjoyed by the applicant upon an award of damages calculated to replace with new carpet the old carpet in his apartment. The applicant points to the account undertaken by Justice Carmody in Fankhauser & Anor v Mission Beach Property Management (Fankhauser).6 In that case, His Honour proceeded on the basis that old carpet in a rental property had a value of $500 and that it would be replaced in two or three years. His Honour awarded the cost of replacement of old carpet reduced by the value of the betterment, so that the person who had damaged the carpet was required to contribute 20% of the cost of a new substitute. [21] In this case, the Adjudicator did not have evidence of the value of the carpet other than speculation by the respondent that because of its probable age its value would have been depreciated to nil. The Adjudicator found that the carpet was well cared for and serviceable and that it would not have required replacement. [22] The Adjudicator considered the authorities referred to in Fankhauser which demonstrate the range of decisions reached on the question of betterment. It is apparent that each case will turn on its facts and that there is no consistent approach by the courts. [23] The Adjudicator referred to the object of an award of damages as being compensatory, and that he must determine what amount is necessary to put the applicant in the position he would have been in but for the respondent’s negligent painting work which damaged the carpet. [24] In the end, the Adjudicator considered that there were unusual circumstances in this case which justified not requiring any contribution or account by the applicant. The circumstances considered by the Adjudicator included: (a) the carpet must be replaced entirely; (b) there is no reasonable alternative to replacement. It is not possible to replace the whole 60 square metres of carpet with old carpet. It is not feasible to patch the carpet with old carpet, given the area involved, the lack of available carpet and the fact the respondent is not a carpet layer; (c) it is not unreasonable to reject a proposal for replacement or patching with old carpet as that was not possible and would not have remedied the applicant’s loss; (d) rental rates for the apartment are affected by the damaged carpet; (e) it is not fair or equitable that the applicant gets nothing for the damaged carpet; (f) it is not fair or equitable that the applicant be required to contribute in circumstances where the carpet would not have required replacement having regard to the excellent condition of the carpet; and 6 [2017] QCATA 65, [45]. -- 5 of 7 -- 6 (g) the carpet was arguably beyond its depreciated life, but it was not beyond its serviceable life. [25] The approach taken by the Adjudicator in refusing to account for betterment is consistent with authorities which recognise that there are exceptions to the approach that gains should be deducted from awards of damages to account for betterment. It is recognised that there is a balance required between overcompensating a party and not imposing on him an undue burden or loss. If a party such as the respondent has no choice in the available remedy which results in betterment, then a refusal to account for the betterment can be justified.7 That was the effect of the Adjudicator’s decision as to the respondent’s circumstances. [26] In the context of s 13(1) of the QCAT Act and the range of unusual circumstances in this case taken into account by the Adjudicator as exceptional circumstances, the Adjudicator’s decision in relation to the appropriate award of damages is not marked by error such as to warrant the intervention of the Appeal Tribunal. [27] It is recognised that this is an important issue, albeit limited by the facts of this case. Leave to appeal is granted on this issue. However, the ground of appeal is not upheld because there has been no error on the part of the Adjudicator. [28] As to the third ground of appeal, the applicant contends that he should have been allowed a discount for the cost of replacing the underlay included in the award of damages. [29] The applicant submits it can be inferred that the underlay was in as “pristine condition” as the carpet and that there was an unjustifiable betterment to the respondent in having the applicant pay for the replacement of the underlay. [30] The respondent points to evidence of the spilled paint “soaking” into the carpet and that it can be concluded the underlay was damaged and needed replacing. [31] A quote from Bundall Carpet Court CQ009077 formed part of the material filed in the Tribunal. The quote was for supply and installation of like for like carpet to a lounge and 2 bedrooms, supply and installation of underlay to those areas and uplift and removal of existing carpet. No separate price was given for the underlay supply and installation. The quote specifically referred to the need to inspect the sub floor once all floor coverings are removed to determine if floor preparation might be required to comply with Australian floor standards. It was flagged that extra cost may be involved if that were the case. [32] The question of excluding the cost of replacing the underlay was not raised by the applicant in his response to the application for a minor civil dispute. [33] The question of the need to replace the underlay was not addressed at the hearing. [34] It would seem that the hearing proceeded on the basis that uplifting and replacing the underlay was a necessary part of replacing the carpet. I do not consider that to be an error in the exercise of the Adjudicator’s discretion as to damages, given the terms of 7 Hyder Consulting (Aust Pty Ltd v Wilhwilhemsen Agency Pty Ltd [2001] NSWCA 313, [30]; The Gazelle (1844) 2 W Rob 279; see also Hoad v Scone Motors Pty Ltd [1977] 1 NSWLR 88 per Samuels JA that betterment cannot arise merely because a plaintiff gets new for old. -- 6 of 7 -- 7 the quote which was the basis of the claim in question, and the evidence as to the extent of damage to the carpet throughout the apartment. [35] Leave to appeal is not granted with respect to ground three. Conclusion and Orders [36] Having regard to my conclusions, the application for leave to appeal and appeal should be dismissed. I make that order. -- 7 of 7 --