Appleton v Gas Strut Marine Pty Ltd [2017] QCATA 41

CITATION: Appleton v Gas Strut Marine Pty Ltd [2017] QCATA 41 PARTIES: Ray Appleton (Applicant/Appellant) v Gas Strut Marine Pty Ltd (Respondent) APPLICATION NUMBER: APL340 -16 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM DELIVERED ON: 4 April 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 21 July 2016 is set aside and the proceeding is remitted to the tribunal for rehearing. 4. Gas Strut Marine Pty Ltd may file any further evidence about the amount to which it may be entitled pursuant to s 42(4) of the Queensland Building and Construction Commission Act within 21 days of today’s date. 5. Ray Appleton may file and serve any evidence in response within 21 days of receipt of material from Gas Strut Marine Pty Ltd. CATCHWORDS: APPEAL – LEAVE TO APPEAL – CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – RECOVERY – where contract for replacement of actuators – where replacement of actuators required additional works – where additional works required QBCC licence – where appellant claimed invoices for works not payable because respondent was not licensed – where tribunal -- 1 of 4 -- 2 found invoices for works were payable – whether error – whether grounds for leave to appeal Queensland Building and Construction Commission Act 1991 (Qld) s 42 Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 32 and 142(3)(a)(i) Chambers v Jobling (1986) 7 NSWLR 1 Dart Holdings Pty Ltd v Total Concept Group Pty Ltd and Ors [2012] QSC 158 Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Pickering v McArthur [2005] QCA 294 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] Ray Appleton lives on the top floor of a 31-storey high-rise complex at Surfers Paradise. During a storm in September 2014, the actuators to his windows were struck by lightning. The storm also caused water damage to the ceiling and around the windows. The body corporate insurer paid a sum of money to Mr Appleton and he arranged for the repairs through Gas Strut Marine Pty Ltd. [2] Mr Appleton paid Gas Strut $10,000. Gas Strut filed a claim for a further $11,329.88. The tribunal ordered Mr Appleton pay Gas Strut $9,045.33 [3] Mr Appleton wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.1 Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.2 [4] Mr Appleton says the tribunal erred in not considering s 42 of the Queensland Building and Construction Commission Act 1991 (Qld). He says that he was not given the opportunity to respond to an affidavit Gas Strut filed on the day of the hearing. He says the tribunal was led into an error of fact by the affidavit of Ted Godfrey, for Gas Strut. [5] In considering this application for leave to appeal, I have not read or considered the statement filed by Mr Appleton’s legal advisers on 28 March 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 at [3]. -- 2 of 4 -- 3 2016. The statement was filed without leave and appears to contain fresh evidence. Did the tribunal err in not considering s 42 of the Queensland Building and Construction Commission Act? [6] Section 42(1) of the Queensland Building and Construction Commission Act (QBCC Act) states that a person must not carry out building work unless the person holds an appropriate contractor’s licence. Section 42(3) states that, subject to s 42(4), a person who carries out building work in contravention of s 43(1) is not entitled to any payment for doing so. [7] Mr Appleton told the tribunal that Gas Strut was not appropriately licensed. The tribunal found that it did not do the work that required a licence. It found that Mr Appleton’s complaint about unlicensed work related only to the roof repairs, which Gas Strut never undertook to repair.3 [8] Unfortunately, the question of licensing is not so simply answered. If Gas Strut engaged in any unlicensed work, the whole contract is affected and a court or tribunal cannot enforce the contract in favour of the party who is in breach.4 [9] Gas Strut undertook painting and the replacement of lights, at Mr Appleton’s request.5 It reinstalled and/or repaired flashings, rendered and painted as required.6 It removed and reinstated an aluminium fabricated wall covered in Colorbond.7 It was not licensed to do any of this work. Section 42(1) of the QBCC Act was therefore engaged, the contract was affected and therefore, because of s 42(3), Gas Strut was not able to enforce the contract. [10] The tribunal, distracted by the discussion about whether Gas Strut was able to carry out the roofing works, was in error. Leave to appeal should be granted and the appeal allowed. Did the tribunal deny Mr Appleton procedural fairness by accepting the affidavit Gas Strut filed on the day? [11] The affidavit Gas Strut filed went to the heart of the s 42 issue. Through that affidavit, Gas Strut tried to show that it was appropriately licensed. A proper reading of the affidavit, however, shows the opposite. [12] In these particular circumstances, I do not think that the tribunal denied Mr Appleton procedural fairness. 3 Transcript page 1-29, lines 6 – 21. 4 Dart Holdings Pty Ltd v Total Concept Group Pty Ltd and Ors [2012] QSC 158 at [39]. 5 Transcript page 1-20, lines 40 – 45. 6 Transcript page 1-11, lines 39 – 40. 7 Transcript page 1-21, line 44 to page 1-22, line 2. -- 3 of 4 -- 4 Did the tribunal make a mistake of fact? [13] Findings of fact by a tribunal will not usually be disturbed on appeal if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.8 An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.9 [14] Given my conclusion that the tribunal was in error in its application of s 42 of the QBCC Act, I do not propose to consider whether there was an error of fact. Orders [15] Leave to appeal is granted and the appeal allowed. The decision of 21 July 2016 is set aside and the proceeding is returned to the tribunal for rehearing. Because the rehearing will require consideration of what, if anything, Gas Strut is entitled to under s 42(4) of the QBCC Act, Gas Strut may file and serve further evidence within 21 days of today’s date. Mr Appleton may file and serve any evidence in response within 21 days of receipt of Gas Strut’s evidence. 8 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125- 126. 9 Chambers v Jobling (1986) 7 NSWLR 1 at 10. -- 4 of 4 --