Bayside Air Conditioning Services Pty Ltd v Doyle [2020] QCATA 31

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Bayside Air Conditioning Services Pty Ltd v Doyle [2020] QCATA 31 PARTIES: BAYSIDE AIR CONDITIONING SERVICES PTY LTD (appellant) v KEVIN DOYLE (respondent) APPLICATION NO/S: APL164-19 ORIGINATING APPLICATION NO/S: MCDO 133/18 (Cleveland) MATTER TYPE: Appeals DELIVERED ON: 11 March 2020 HEARING DATE: 2 March 2020 HEARD AT: Brisbane DECISION OF: Member Gordon ORDERS: Leave to appeal is refused. This means that the appeal fails. CATCHWORDS: APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN NO APPEAL LIES – where the appellant effectively seeks a review of the decision made below – whether a misunderstanding of the Adjudicator was significant enough to undermine the decision made – whether any reasonably arguable grounds of appeal APPEARANCES & REPRESENTATION: Appellant: Self-represented Respondent: Self-represented REASONS FOR DECISION This is an appeal from a decision by an Adjudicator in MDCO 133/18 (Cleveland) which was consolidated with Q76/18 (Cleveland) by an order made by the tribunal on 13 December 2018. -- 1 of 3 -- 2 The dispute between the parties concerned the installation of air conditioning components by Bayside Air Conditioning Services Pty Ltd in Mr Doyle’s house. Mr Doyle did not pay Bayside’s invoice for $1,433.301 and so Bayside brought a minor civil dispute application to try to recover this amount from Mr Doyle. In response to the claim, Mr Doyle brought a claim against Bayside for damages for $5,402. This was for the cost of rectification works. He alleged that Bayside failed to install a hinged grille on the return air duct as it was contractually obliged to do (one that could readily be opened to maintain the filters behind) and he had also to pay a builder to correct the size of the opening for the supply air grille in the bulkhead because the wrong dimensions were given by Bayside to the builder. Both sides put a fair amount of documentation before the tribunal, and then attended before the Adjudicator on 7 February 2019. The Adjudicator heard evidence and submissions that day and read the documentation. What happened at the hearing can be seen from a transcript of the hearing which has been obtained by the Appeal Tribunal. The Adjudicator did not immediately make a decision, but reserved it for further consideration. Then on 5 June 2019 a final decision was delivered in writing to the parties, with reasons following later. The Adjudicator found that the contractual obligations between the parties arose from a course of dealing between them. Bayside would obtain approvals for each aspect of work, and then carry out the work in accordance with instructions from Mr Doyle.2 The Adjudicator found that it was an essential term of the contract between the parties that the return air grille be hinged to provide easy access to the filters behind to allow them to be cleaned.3 The Adjudicator found that Bayside’s failure to achieve that was a breach of contract and that Mr Doyle was entitled to an award of $3,410 being the reasonable cost of removing the existing removable core grille and replacing it with a hinged grille as required by the contract. Mr Doyle also succeeded in the second part of his claim. The Adjudicator found that the cut-out dimensions given by Bayside to the builder for the supply air grille in the bulkhead had been incorrect, with the result that Mr Doyle had to pay the builder to correct the size of the opening.4 He was awarded $540 which was the cost of this work. As for Bayside’s invoice for $1,433.30, the Adjudicator found that none of this was payable by Mr Doyle because it either related to the defective work, or to work that was not in fact done following a justified termination of the contract.5 Part of Mr Doyle’s claim against Bayside failed. This was in respect of damage to the cupboard door. The Adjudicator found that there was insufficient evidence to substantiate that claim.6 1 Invoice 35875. 2 Reasons, [25]. 3 Reasons, [30]. 4 Reasons, [52]. 5 Reasons, [39] and [42]. 6 Reasons, [53]. -- 2 of 3 -- 3 Grounds of appeal The grounds of appeal are various, but are largely a restatement of the points made before the Adjudicator, with a request to the Appeal Tribunal to find in Bayside’s favour instead of Mr Doyle’s favour. This approach cannot succeed. These appeals are not an opportunity for a party to try to improve on the decision below by seeking a second opinion. Instead, it is necessary to show that it is just for the appeal to succeed because of an error of law of the decision maker or a material error in the factual findings. Although some fresh evidence was submitted by Bayside in the appeal, there was no formal application as required by the directions made by the Appeal Tribunal for such evidence to be accepted by the Appeal Tribunal. At the appeal hearing, whether or not Bayside was seeking the acceptance of fresh evidence was examined with Mr Platz who was acting as Bayside’s representative. Again no formal application was made for the Appeal Tribunal to accept any fresh evidence. Any such application would require Bayside at least to show that the evidence now sought to be put before the Appeal Tribunal could not, with due diligence, have been put before the Adjudicator for the original hearing. It would appear that this could not be shown. At the hearing of the appeal, and as raised in his written submissions, Mr Platz did however identify an error in the Adjudicator’s factual findings. The Adjudicator said that the other air conditioning grilles in the house were hinged.7 It was pointed out by Mr Platz that this was incorrect. The other grilles, upstairs at least, were held by clips and were not hinged. Mr Doyle agreed that the Adjudicator did misunderstand this, and this also appears from the transcript of the hearing. So the question is whether the misunderstanding was significant enough to undermine the decision reached by the Adjudicator. The central issue before the Adjudicator was whether to accept Mr Doyle’s evidence that the contractual agreement was for a hinged air return grille in the downstairs of the house, and whether that was ever changed. The Adjudicator found corroboration for Mr Doyle’s evidence about this in the written materials.8 And as explained in the hearing, the only grille which needed to be hinged was the air return grille because that was the grille for which access was needed behind for cleaning.9 It was therefore unimportant and irrelevant to the central issue whether the other grilles were hinged or clipped. In the circumstances, the Adjudicator’s misunderstanding about the fixing of those grilles did not undermine the decision reached. Leave to appeal refused In the circumstances there is no arguable ground of appeal. In these types of appeal, leave is required in order to launch an appeal. I refuse leave to appeal. This means that the appeal fails. 7 Reasons, [11], [26] and [29]. 8 Reasons, [26]. 9 Transcript, 1-19 line 46. -- 3 of 3 --