Cotter v Youngberry & Anor [2019] QCATA 104

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Cotter v Youngberry & Anor [2019] QCATA 104 PARTIES: COLIN COTTER (applicant/appellant) v KEVIN YOUNGBERRY HYACINTH YOUNGBERRY (respondents) APPLICATION NO/S: APL237-18 ORIGINATING APPLICATION NO/S: MCDO 40/18 MATTER TYPE: Appeals DELIVERED ON: 11 July 2019 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Carmody ORDERS: The application is dismissed. CATCHWORDS: APPEAL – MINOR CIVIL DISPUTE – CONSUMER DISPUTE – where consumer paid respondents’ company to replace structural elements of fibreglass boat – where work done allegedly defective – where quoted cost of rectification exceeds amount paid – where consumer claim dismissed – whether grounds for leave to appeal. Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32 REPRESENTATION: Applicant: Self-represented Respondent: Self-represented APPEARANCES: 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 8 -- 2 REASONS FOR DECISION [1] The application is for leave to appeal a dismissal order in a consumer dispute. The context [2] The applicant is renovating a 1980’s Swift Craft fibreglass boat. [3] On 30 June 2016 the respondents’ company, Gale Force Boats, agreed to “to replace floors, stringer, transom, enclosed transom, bait tanks, under floor fuel tank, to replace pirspex (sic) windscreen. Flowcoat all boat” for a lump sum of $10,000 cash.1 [4] The respondents have since sold the business and were substituted as parties on 30 January 2019. [5] Typically, in fibreglass boats stringers (or tabs) are long thin parallel battens or lengths of bonded solid core (in this case wooden) load bearing structural supports for the hull and deck running longways from transom to bulkhead overlaid with a protective fibreglass coating. The repair order does not mention how many stringers were to be replaced and uses the word “stringer” which normally denotes the singular but the image on page 3 of the applicant’s survey report shows a series of three (3) stringers in black. [6] Depending on the extent of decay the process of repairing damage involves removing the rot in the underfloor beams and then either replacing it with matching material or plywood and refitting. Smaller sections can be dried, cleaned and injected with resin in situ. It is not clear whether the parties intended the entire stringer system to be replaced, regardless of the degree of deterioration, or repaired where possible. Bulkheads are partitions inside the hull between the stringers used to stiffen the vessel. [7] The deck is structural planking or multiple layers of plywood coated over with layers of fibreglass soaked in a plastic resin covering the hull for rigidity. Wood rots and the fibreglass delaminates over time due to water saturation and penetration. Voids between the layers of plywood trap water and accelerate rotting if not waterproofed with resin and painted. This naturally weakens the structure and seaworthiness of the boat. [8] The transom is the square end at the stern (or back) that reinforces the hull where the sides of the boat meet. [9] Gale Force started the job in mid-July 2016 and finished in November 2016. According to the applicant “the boat was an empty shell so the work to be done was easily foreseeable”. He inspected and photographed the work in progress three or four times a month before going on an overseas holiday between 10 September–8 October 2016. [10] The evidence of the order in which each item of work was done up to his departure, and the stage reached prior to him leave the country, is disjointed but the applicant asserts the photographs he took before leaving reveal “little to nothing was done internally”. 1 Acknowledgement of satisfactory repair/supply document dated 30 June 2016. -- 2 of 8 -- 3 [11] By the time he got back less than a month later the fuel tank “…was already installed and the deck was … back on” so that the timber work below was not visible. [12] Extras were later added including installation of a pod, drum winch compartment, gunnel, pumps and hoses to the bait tanks, grab rails and supports for the marlin chair. A different contractor installed the outboard motor, but Gail Force connected “… the wiring on the sender from the fuel tank to make it easier for the motor installer to access the wiring loom for completing the motor installation”. [13] The applicant says there were ongoing problems after the boat was delivered in late 2016 with the bait tanks pump (replaced in May 2017 for $115) and fumes from the new fuel tank. [14] Just before Christmas 2017 Hervey Bay Fibreglass cut into the deck to access the petrol tank and found fuel leaks a crimp in the breather hose fixed and damage to the sender wire and fuel line. The hull had to be flushed out costing the applicant $825. [15] Mr Sayer a marine surveyor with over 21 years’ experience examined under the deck of the boat out of the water on 18 January 2018. He reported finding: half the fibreglass/plywood deck had previously been removed by Hervey Bay Fibreglass, the hull in average condition, an “indescribable” mess of dry fibre glass with no structural strength or purpose, areas of fibreglass missing. [16] More relevantly, the port stringer was not one continuous length to the bow and butts into a rotten bulkhead (photo 4 on page 5), another was laid over a piece of rotten decking and painted over (photo 3 of page 4) and construction pine instead of marine ply was used on the deck the new deck allegedly installed to hide the poor repair (photo 1 on page 3) and fastened down with sub-standard furniture grade screws (photo 2 page 4). The applicant says this was when he first became aware that “rotten timber was left in my boat … and painted or fibre glassed over instead of removing it”. [17] No specific criticism was made of the refitted deck floors, transom, windscreen, flowcoat or extras. [18] Nor are there any comments or photos of the condition of stringers, flooring or bulkheads not adversely mentioned in the report. [19] On 29 January 2018 Hervey Bay Fibreglass quoted $3,800 for removing the rot in the V berth, $1,200 for supply and fitting a new fuel tank, $800 for flowcoat and fleck, $3,200 for replacing the deck and $3,800 for new stringers aft of the main bulkhead plus $2,200 for materials. [20] The applicant claimed compensation of $15,000 plus $3,519.80 in out of pockets or $10,000 plus all necessary materials to repair the boat or alternatively approximately $52,000 for the respondents to purchase the board from him to cover his costs to date. [21] The respondents denied any defective work and liability for asserted losses. [22] The tribunal accepted their evidence “about what work was done and how” and dismissed the claim because the applicant had failed to prove that poor workmanship had caused his loss. -- 3 of 8 -- 4 [23] At T1-4: L34 the tribunal notes “…that the applicant …suggests that the work that was done while he was away overseas was shoddily performed because he was not able to inspect it. I do not accept this. I also note that it was approximately one year for the complaint to be made.” The filed grounds [24] The applicant’s major complaint is that the respondents either intentionally or negligently painted or fibre glassed over rotten internal structural timbers in the deck, stringers and bulkhead instead of replacing them with new materials as agreed. [25] In legal terms the applicant’s case is that Gale Force did not earn the price of the contract because of substantial non-performance of its conditions and the respondents should have been ordered to refund the $10,000 already paid plus pay 50% more so the applicant can get the job redone now by a reputable local repairer. [26] Put another way, Gale Force repudiated or seriously breached its contract obligations and would be unjustly enriched if it kept the payment. [27] This is a difficult proposition to sustain in a hearing conducted wholly on the papers without any cross-examination where there is an obvious risk of information gaps and the tribunal is deprived of standard forensic aids such as demeanour in credit and opinion-based cases. Efficiency is good but a decision on the merits with the benefit of all relevant facts is better. [28] The written submissions dated 27 November 2018 identify “…the main concern (as) the rotten timber … transom and stringers …” in structural parts “… meaning the boat was not seaworthy.” [29] Specific grievances are that the tribunal: a) was side-tracked by other issues and missed the main point of the claim (the failure to perform the contract by not removing and properly replacing rotten timber in the internal structures – floors, transom and stringers – to make his boat safe and seaworthy); b) failed to see why Mr Sayers’ occupation (marine surveyor not “an experienced boat builder” as he was referred to) is significant; c) did not to give any weight to the independent expert findings and corroborative photographs of an independent expert about the structural integrity of the boat and instead giving too much weight to the biased contrary evidence of a party to the more experienced and independent expert; d) wrongly blaming the repairs and inspections of other parties including himself for some undoing of the respondent’s work including breaking down of the fibreglass; e) unfairly criticising him for not making a complaint for more than 12 months where the defects were not reasonably discoverable any earlier. -- 4 of 8 -- 5 [30] The applicant does not contend that there was no evidence to support the tribunal’s critical findings, inferences or conclusion but that they were unreasonable or against the overall weight of the evidence. This raises a question of fact not law. [31] However, the leave point is equally capable of being framed as one of pure law viz., whether the tribunal failed to decide the dispute according to the substantial merits. [32] The distinction affects the appeal powers and procedures but for the moment the pivotal question is whether the applicant has carried the burden of demonstrating that the tribunal’s decision to dismiss his claim was contrary to the only conclusion the evidence most favourable to the respondents reasonably permitted. (a) The rotten timbers found in 2018 [33] The deck and stringers account for more than 50% of the total rectification quote. [34] The applicant had the burden of proving that Gale Force was liable for compensation to cover it because it breached the implied warranty of workmanship. This included negativing any response. For this he relied on his own observations, photographs as well as Mr Sayer’s affidavit and report. [35] In further submissions on 31 January 2019 he claims at [6] that the rot in issue can easily be seen in photographs of the stringers and the floor taken before 10 September 2016. [36] The respondents claim that the rot the applicant observed and photographed before going on holidays in 2016 is not the same as the decay Mr Sayers reported on in 2018 because any rotten structural timber, they came across within scope was removed. They also maintain that on proper inspection none is evident in the photographs including the one taken on the 15 July 2016 at 10:03am. [37] Whether or not there is rot visible in the 2016 photographs is a question of fact which the tribunal chose to resolve in favour of the respondents based on examination and interpretation of the document. Unless that view is demonstrably mistaken it doesn’t matter whether I agree with it or not. It is not enough for the applicant to show that the tribunal’s opinion is doubtful or arguably wrong. My opinion about contestable questions of fact does not prevail over the tribunals where there is more than one possible answer. [38] There was no discussion by Mr Sayer of the wood decaying process, or the likely age of the rot found in the stringers, decking and bulkhead beams in 2018. Nor is there any evidence of the use and care taken of the boat between November 2016 and January 2018. [39] Likewise, the inference that the rot Mr Sayer found in the stringer and bulkhead timbers in 2018 was the same as the rot the applicant says existed in 2016 was certainly open to the tribunal but it is not an irresistible one. It was up to the applicant to address and refute reasonably credible alternative explanations and provide the tribunal with the material it needed to resolve the issue in his favour. Otherwise, the tribunal was perfectly entitled to accept and act on the contrary conclusion that Gale Force removed all existing rot in the structural timber in 2016. -- 5 of 8 -- 6 [40] Even if the same rot in the stringers, decking and bulkhead found in 2018 did pre-date the 2016 repairs Mr Sayers does not clearly explain why not removing it in 2016 makes the boat unseaworthy now or why the disputed work substantially non- compliant and significantly sub-standard. Nor does the applicant’s material make it clear why the boat needs a complete structural rebuild rather than repair. [41] Experts give opinions. The tribunal finds the facts based on observations, inference and any admissible opinions it accepts as trustworthy. The ultimate fact of whether the boat was unseaworthy and in need of a structural rebuild in 2018 because of the respondent’s breach of its duty of care in 2016 is a matter for the tribunal not Mr Sayer to decide. [42] Likewise, the tribunal was not compelled by the laws of logic to find that the rot Mr Sayer discovered was “covered up” (deliberately or otherwise) when the applicant was overseas and therefore were not discoverable (if they existed) before redelivery in late November 2016 or until late 2017 at the earliest. [43] While the stringer photographed by Mr Sayer was not continuous to the portside wall its structural integrity is nonetheless ensured by the beams in the v-berth which the respondents were not engaged to repair and it is the only area of rot Hervey Bay Fibreglass quoted to remove. (b) Use of construction instead of marine ply [44] The applicant says in his last set of submissions – “Construction ply?? Name alone says it shouldn’t be used in a salt water marine environment. If epoxy doesn’t stick to marine ply, this would make marine ply redundant and not be able to be used for its intended purpose. You use construction ply because it is extremely cheap as opposed to marine ply. Plus they say its fully encapsulated yet they drove plain furniture screws through it creating a hole as the furniture screw will rust out quickly in a marine environment leaving cheap and nasty construction ply to also rot thereafter.” [45] All the respondents’ witnesses explained that construction ply was used for the deck instead of marine ply marine ply is compatible with epoxy but not the polyester resin used in this boat. 2 Mr Sayer commented on it but did not contradict this assertion. [46] This is a reasonably credible response that was challenged but not rebutted. (c) Inadequate fastenings [47] The applicant submits that “furniture screws through it creating a hole as the furniture screw will rust out quickly in a marine environment leaving cheap and nasty construction ply to also rot thereafter”. [48] Mr Sayers report at page 4 says at recommendations “… furniture grade screw which was used to fasten the new deck down with. These should be replaced with marine grade fastenings”. 2 Respondents’ submissions 14 January 2019 at para 35(i). -- 6 of 8 -- 7 [49] According to the respondents the fasteners and screws had no structural role and merely held things in place temporarily until the adhesive bog between the floor and stringer system hardens prior to fibre glassing.3 This is a reasonably credible response that was not negatived. (d) The fuel tank damage [50] The respondents says the fuel tank was sealed and not leaking when the boat left the workshop in 2016. [51] The fuel filler was installed in the top deck instead of to the floor at the applicant’s request despite the risk of overfilling and spillage. The placement of fuel filler was “insisted” upon by the applicant “against the respondents’ advices”.4 [52] Notably, the Aquaholics invoice for recalibrating the gauge and refilling the tank does not suggest that it was leaking then and even the applicant conceded in his complaint to the Office of Fair Trading that the tank was not leaking after Hervey Bay Fibreglass fixed the crimp in the hose in 2017. [53] Faulty work carried out over 12 months previously is not the only rational possible explanation for it was up to the applicant to provide the tribunal with the material it needed to resolve the issue. [54] The tribunal was clearly unconvinced that the respondents were to blame for any leakage problems. [55] The proposed evidence about the genesis fuel tank does not necessarily contradict the implied finding that the tank was not leaking when the boat left the workshop in 2016. (e) The live bait pump [56] The pump was replaced in May 2017 ostensibly because it was too noisy because it was installed upside down but, on one interpretation, the manufacturer confirms by email that it is not possible to fit it upside down and the respondent denies that the mounting angle adversely affects operation (HY4).5 [57] The tribunal finding has not been shown to be contrary to compelling contrary evidence or inferences. (f) Untidy fibreglass finish [58] This is not a major fault or breach justifying non-payment or substantial compensation. The fibre glass near the rear bulkhead was damaged when the fuel tank was removed. (g) Flowcoat [59] The respondents have already smoothed out free of charge. 3 Respondents’ submissions 14 January 2019 at para 35(o). 4 Respondents’ submissions 14 January 2019 at para 35(e); Hyacinth Youngberry affidavit of 24/07/18 at [27] and Kevin Youngberry affidavit of 24/07/18 at [22]-[23]. 5 Email of 17 July 2018 from Johnson Pump National Sales Manager, attachment HY4 to Hyacinth Youngberry affidavit of 24/07/18. -- 7 of 8 -- 8 Conclusion [60] Preferring one party’s affidavits or submissions over the other when deciding a minor civil dispute is not an appealable error unless the primary or inferential facts on which the decision rests are not rationally and logically supported by credible evidence. [61] Applications for leave to appeal are not judicial rehearings conducted for the benefit of a disgruntled applicant hoping for a better result second time around. [62] On the contrary, tribunal decisions are prima facie final not provisional pending confirmation on appeal. The applicant’s apparently genuine belief that he had presented an open and shut case that only an unreasonable or biased tribunal could reject is not enough. Nor is a difference of opinion. Even if the appeal tribunal disagrees with the tribunal’s reasoning or prefers the opposite conclusion decisions or orders stand unless vitiating error and substantial injustice to the applicant is demonstrated. [63] Leave is not justified here because although contestable the disputed findings and inferences were reasonably open to the tribunal and therefore unimpeachable on appeal. [64] There is no indication that the tribunal side-tracked itself and missed the point, ignored the marine surveyor, did not see the significance of Mr Sayer’s occupation, irrationally favoured the respondents or acted unfairly. [65] The tribunal was entitled to reject the applicant’s case for want of proof because though prima facie credible, if not compelling, it did not either grapple with or persuasively rebut a plausible answer. [66] The application is dismissed. -- 8 of 8 --