Fencewise GC Pty Ltd v Guest [2018] QCATA 113

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Fencewise GC Pty Ltd v Guest & Anor [2018] QCATA 113 PARTIES: FENCEWISE GC Pty Ltd (appellant) v MICHAEL PETER GUEST and KIM MARIE GUEST (respondents) APPLICATION NO/S: APL325-17 ORIGINATING APPLICATION NO/S: MCD495/17 (Southport) MATTER TYPE: Appeals DELIVERED ON: 13 August 2018 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Gordon ORDERS: Leave to appeal against the decision made in Southport MCD 495/17 is refused. The appeal therefore fails. CATCHWORDS: APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN NO APPEAL LIES – leave to appeal in minor civil dispute – whether any reasonably arguable grounds of appeal REPRESENTATION: Appellant: B Gray, director Respondents: 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) (the QCAT Act). REASONS FOR DECISION [1] Fencewise GC Pty Ltd were engaged to erect a fence on the boundary between the house of Michael and Kim Guest and a neighbour’s house at Hope Island. As it turned out, the fence was not erected in the correct place. Instead, it encroached by a maximum of 40cm into the land owned by the Guests. -- 1 of 6 -- 2 [2] After unsuccessful discussions with Fencewise about how the error could be rectified, the Guests engaged other contractors to do so and paid them $2,500. In a claim brought in the tribunal in its Minor Civil Disputes jurisdiction, they sought this amount from Fencewise as compensation. [3] This claim was decided by a member of the tribunal. [4] One of the issues at the hearing was who had made the contract with Fencewise to erect the fence. The Member decided that the Guests were parties to that contract and therefore had standing to bring the claim. There is no appeal against that finding. [5] Another issue was whether the fence was erected in the wrong place. The two sides disagreed about this.1 The Member accepted the opinion of a surveyor as shown by documents produced by the Guests that the fence was in the wrong place.2 There is no appeal against that finding. [6] There were then two further issues on liability. The first was exactly what Fencewise’s contractual obligations were to the Guests, with respect to erecting the fence in the correct place. Secondly whether Fencewise had failed to comply with those obligations and therefore were in breach of contract. Then, if Fencewise were found to have been in breach of contract, a further issue was the correct amount of compensation which should be awarded to the Guests. [7] On these issues the Member found against Fencewise and ordered it to pay $1,200 to the Guests. This was less than their outlay of $2,500 to reflect the fact that, as it turned out, only part of the fence erected by Fencewise was retained by the Guests. [8] It is these issues which are the subject of this appeal. [9] In resolving this appeal, the Appeal Tribunal has obtained a transcript of the hearing. Unfortunately for cost and copyright reasons this cannot be provided to the parties. Grounds of appeal [10] Fencewise’s grounds of appeal appear in its submissions, which were given pursuant to the tribunal’s direction requiring it to specify the way in which the decision maker was in error of fact and/or law. [11] The grounds have been argued at length in the submissions but can be summaris ed as:- (a) The Member was wrong on the evidence to find Fencewise to blame for the incorrect positioning of the fence bearing in mind it had no obligation to try to identify the correct position of the boundary. (b) Having decided that Fencewise was at fault for erecting the fence in the wrong place the Member was wrong to award $1,200 being the cost of removal and re- erection of a panel in the courtyard. The Guests’ true loss was much less. 1 Transcript 1-30, line 13; 1-36, line 12. 2 Transcript 1-73, line 33; 1-74, line 9. -- 2 of 6 -- 3 Ground (a) [12] It is clear from the Member’s discussions with the parties and from his reasons, that he appreciated it was important to identify the precise contractual obligations which arose.3 The Member understood that the contract required Fencewise to erect a ‘rear boundary fence’ at the boundary of the two properties,4 and that under the contract Fencewise had no obligation to search and locate boundary pegs.5 The Member recited certain relevant parts of the contract – in particular on page 1 that ‘boundary pegs must be in place before work commences’ and that the owner is responsible for ensuring that all boundaries are clearly identified and marked.6 It is clear that the Member recognised that when doing work for another under a contract, a person must do that work with due care and skill. [13] The Member tried to elicit evidence from the parties about exactly what instructio ns had been given to Fencewise which would enable it to erect the fence in the correct place. This evidence was not the best because the Guests had had no direct contact with Fencewise prior to completion of the work. Instead, all dealings with Fencewise had been with the neighbour, who was not at the hearing. There was written evidence from the neighbour however, which the Guests relied on. Unfortunately, plans which were provided to Fencewise were missing from the materials available at the hearing.7 [14] Mr Gray director of Fencewise, gave evidence that there were only two pegs on the ground. He said that when he came to erect the fence, one important peg was missing – that was the surveyor’s boundary peg on the corner where the right hand side and back fence met.8 He made up for this by relying on measurements provided by the neighbour, which gave the length of the fences required. Using these measurements, he described arcs on the ground with his tape from the two pegs that he found. Where the arcs intersected identified the correct point for the start of the fence he was erecting.9 [15] The Guests said the surveyor’s boundary peg on the corner where the right hand side and back fence met was not missing; it was simply buried in the ground a little. They said that close to the surveyor’s peg was a builder’s marketing peg which was present all the time and was highly visible – being painted white, about an inch wide and three feet high. This, it was said, was sufficient for Fencewise to be able to identify the correct position for that end of the fence.10 [16] Mr Gray’s position was that Fencewise was not obliged by the contract or in any other way to try to find the buried peg, so he was justified in tackling things as he had done by using the measurements provided by the neighbour.11 This was despite the warning in the neighbour’s email which provided the measurements, that they were approximate and that Fencewise could double check and make its own measurements. 3 See for example, transcript 1-29 to 1-30 (discussion) and 1-73, line 6 (reasons). 4 Under ‘description’ in the contract. 5 Transcript 1-28, line 41; 1-32, line 13. 6 Clause 4(b) of the contract at transcript 1-29 line 31. 7 The neighbour had sent plans to Fencewise when she asked for a quote. 8 Transcript 1-32 line 17. 9 Transcript 1-34. 10 Transcript 1-9, 1-55. 11 Transcript 1-57, lines 8 and 17, 1-55, line 38. -- 3 of 6 -- 4 He did not dispute however, that the builder’s marketing peg was present when he carried out those measurements.12 [17] This was not a case of replacing an existing boundary fence in exactly the same place. It was a vacant lot. So identification of the pegs on the ground was crucial to getting the position of the fence correct. [18] In his findings on these issues, the Member said that his main reason for making a monetary award was the presence of the builder’s marketing peg. He said it would have been a relatively easy thing for Fencewise to have checked that the proposed fence was in alignment with it.13 [19] Not stated by the Member, but clearly the implication arising from this comment, was that upon finding that the proposed fence was not going to be aligned with the builder’s marketing peg, Fencewise would be put on enquiry as to whether the measurements provided by the owner were in fact accurate or whether its method to identify the start of the fence worked. There was either a mistake there, or the builder’s marketing peg was incorrectly positioned. Either way, there was likely to be a surveyor’s peg somewhere to clarify the position of the boundary, as had been discovered later. A fencing contractor put on such enquiry was taking a risk in going ahead and erecting the fence anyway without checking the position with the owner. To fail to check the position was probably a failure to carry out the work will due care and skill (and therefore a breach of contract) because of the high risk that the fence would be erected in the wrong place if a mistake were made. [20] It is not a ground of appeal that the Member failed to develop this finding fully enough or explain it in more detail. That the Member was critical of Fencewise for not having regard to the position of the builder’s marketing peg, albeit not a surveyor’s peg, seems to have been understood by both parties as being his reason for finding against Fencewise on the question of liability.14 [21] Ground of appeal (a) therefore, is effectively an attempt to re-argue points argued at the original hearing on which Fencewise did not succeed. The ground is supported by argument and references to fact, all which were canvassed at the hearing. As mentioned above, the Member reached a conclusion that Fencewise had failed to comply with its contractual obligations because it proceeded to erect the fence when there was an apparent high risk that it would not be erected in the correct place. That finding was certainly open to the Member. In those circumstances it cannot be said that there is any error made by the Member. Ground (b) [22] To understand this ground of appeal, it is necessary to appreciate that when the fence was erected, the Guests’ lot was one of several vacant lots which were being developed. The Guests were having a house built on their lot. 12 This is the overall effect of the passage of the transcript 1-54 to 1-57. 13 Transcript 1-74, line 34. 14 The submissions from Fencewise however, show that Mr Gray understood the Member to be saying that the builder’s marketing peg was in fact the boundary peg – page 6, submissions of 21 February 2018. -- 4 of 6 -- 5 [23] The fence erected by Fencewise was 2 metres high and of tilt panel construction. This is where a concrete fence or wall is made on site using formwork and reinforceme nts and then (in the case of a fence) lifted onto pier footings made in the appropriate place. Adjacent panels would be joined together by one or more bolts. It was therefore of substantial construction. [24] As it turned out however, the Guests largely had no need for this fence. This was because the external walls of their house on that side were built to the boundary except for a courtyard area. There would be no need for any fence in places where the house was built to the boundary. There was only need for a fence for the courtyard area. [25] In this appeal, there is a difference between the two sides as to how this happened. Fencewise say that it was always the plan to build to the boundary, therefore it was engaged to build the fence by mistake. Inevitably the fence would have to be removed. It was only needed in the courtyard area and it would have been positioned differently there. [26] In their submissions on appeal, the Guests say that the original plan was not to build the house to the boundary, which is why Fencewise was engaged to erect the fence. But then the plans were changed, which required the removal of the fence anyway apart from the courtyard area. [27] The argument now advanced by the Guests was not raised at the hearing in the same way as it is now put and was therefore not before the Member.15 If it had been, it might have changed the outcome. But it is too late to raise this issue on appeal. [28] The Member decided that because the house was to be built to the boundary, the fence would have had to be removed anyway (even if erected in the correct position) except for the courtyard area.16 Hence he disallowed the cost of removing the fence ($1,300). In respect of the fence in the courtyard area, the Member found that it had been erected in the wrong place.17 Since it was erected on footings, these would have had to be removed and repositioned anyway. Hence the cost of this work which was done ($1,200), should be allowed. [29] This ground of appeal is against this award of $1,200. Fencewise says that it should not be ordered to pay this to the Guests because it is effectively being ordered to pay for a new fence for the Guests when the Guests would have had this expenditur e anyway even if the fence had been erected in the correct place. This is because even if the fence had been erected in the correct place, the footings were in the wrong place and there was a join near the middle of the courtyard. Therefore the Guests would have had to reposition it anyway. Therefore they had no loss. [30] At the hearing, Fencewise made the same points.18 Mr Gray says that at the hearing he drew a plan for the Member showing this.19 15 The way it was put at the hearing was that despite the presence of the fence had it be en in the correct place, the house could still have been built: transcript 1-50, line 19. 16 Transcript 1-73, line 38; 1-74, line 13. 17 Transcript 1-73, lines 10 to 32; 1-74, line 9. 18 Transcript 1-15, line 26; 1-47, line 18; 1-48, line 20; 1-49, line 34; 1-50, line 6; 1-71, line 22. 19 This may be transcript 1-52, line 15 to 1-53, line 40. -- 5 of 6 -- 6 [31] As Mr Gray of Fencewise put it when he interjected when the Member was giving his reasons:-20 Well if you accept that they had to remove the fence anyway, why do I have to pay for their new courtyard fence? It doesn’t make sense. [32] The overall effect of the Member’s findings was that the need to remove the fence was caused by its incorrect position and not anything else. Therefore logically the cost of that removal and repositioning was the correct loss. In so far as ultimately the award of $1,200 might have put the Guests in a better position than the position in which they would have been had the breach of contract not occurred, it was open to the Member to reduce the award to take account of such ‘betterment’. However this would only be done if it were fair to do this, and the Member was well aware that Fencewise had been paid in full for erecting the fence ($2,900 including GST), yet had erected it in the wrong place. It would have been unfair to allow Fencewise to retain the whole of this money in the light of its breach of contract. In addition to this, it was unclear whether some other solution might have been found had the fence been in the correct place. No thought had been given to finding any such solution because the fence was not in the correct place. Instead, the fact that it was in the wrong place made it inevitable that it had to be removed and repositioned, and this cost $1,200. [33] Section 13 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) requires the tribunal when deciding minor civil disputes, to make orders that it considers fair and equitable to the parties. This does not mean that the tribunal may disregard normal principles of damages awards. But where as in this case, there are a number of different approaches which could had been made to the remedy issue, the tribunal is free to choose the one which seems the fairest to the parties. [34] Here, the Member rightly did not allow the claim for the cost of the removal of the fence and took a sensible view to resolve the difficult issues which had arisen on remedy. This was consistent not only with the requirement of section 13 but also with objects of the QCAT Act to deal with matters in a way that is accessible, fair, just, economical, informal and quick.21 [35] In the circumstances it cannot be said that there was any error by the Member. Conclusions [1] In this appeal, there are no grounds of appeal which have a chance of success. [2] Appeals in minor civil disputes can only be brought with the leave of the Appeal Tribunal. Such leave will only be given if there is an arguable case on appeal. Such appeals are only arguable if the decision maker is in error in law, or has made a factual finding which could not be made on the evidence. This is not the case here. Leave to appeal is refused and the appeal therefore fails 20 Transcript 1-74, line 15. 21 Section 3(b) of the QCAT Act. -- 6 of 6 --