Factory Replica Race Pty Ltd v Petrovic [2017] QCATA 17

CITATION: Factory Replica Race Pty Ltd v Petrovic [2017] QCATA 17 PARTIES: Factory Replica Race Pty Ltd (Applicant/Appellant) v Filip Petrovic (Respondent) APPLICATION NUMBER: APL294-16 MATTER TYPE: Appeals HEARING DATE: 18 January 2017 HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM DELIVERED ON: Ex tempore reasons 18 January 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – PARTIES – whether contract existed between parties on evidence before tribunal – whether tribunal made error of fact as to who was party to the contract – whether grounds for leave to appeal APPEARANCES: APPLICANT: Alex Chambers, Factory Race Replica Mitchell Chambers, Factory Race Replica Anthony Williamson, Factory Race Replica RESPONDENT: Filip Petrovic REASONS FOR DECISION Factory Replica Race Pty Ltd started work restoring an XB Falcon owned by Mr Filip Petrovic in 2013. Mr Petrovic was a friend of a director of the company at some stage, Mr Scott McNulty. The car was finished in 2014, around about June, and returned to Mr Petrovic with invoices totalling $12,784.75. As part of the factual matrix, but not relevant, shortly after the car was returned to Mr Petrovic, Mr McNulty removed operating tools and current customer cars from Factory Replica Race Pty Ltd. On demand by -- 1 of 2 -- 2 the company to Mr Petrovic for the $12,784.75, Mr Petrovic advised that he had paid Mr McNulty. In the tribunal hearing below, Mr McNulty provided a statutory declaration that confirmed that to be the case. He was cross-examined. Mr Petrovic provided evidence of payment, and the tribunal, therefore, dismissed the application. Factory Replica Race Pty Ltd has applied for leave to appeal that decision. As I indicated, leave to appeal will only be granted where there is an error by the tribunal and that error resulted in a substantial injustice. I clarified at the hearing that the alleged error of the tribunal was that the tribunal didn’t accept the fact that there was a contract between Factory Replica and Mr Petrovic to do work at $65 per hour, that contract evidenced by the invoices submitted by Factory Replica and the fact that Mr Petrovic acknowledged a verbal contract by payment of those invoices. That is a finding of fact. As I mentioned, findings of fact will not be disturbed by an appeal tribunal if there is evidence that can support that finding. The finding of fact will only be overturned if the finding of fact is contrary to the compelling inferences of the case. I have read the transcript, and I have looked at the material before the tribunal below. I understand that Factory Replica say that Mr McNulty swore a false statutory declaration. That was something that was raised in the tribunal below by Mr Williamson, and Mr McNulty was subject to cross- examination. Despite that, the tribunal found that there was no evidence to support a finding that the contract between Mr Petrovic and whoever it was, was anything other than as per the quotes. Significantly, the tribunal found that Factory Replica had not established that there was a contract between it and Mr Petrovic for work at an hourly rate. The tribunal noted that Mr Williamson was not a party to the conversation which allegedly established that contract, and accepted the evidence from both Mr Petrovic and Mr McNulty that the quote would be honoured and he’d only pay for the extras, which he did. The evidence before the tribunal can support the tribunal’s findings, and I can find no compelling reason to come to a different view. As the tribunal below observed, you might have a different remedy against different people in a different tribunal, but leave to appeal is refused in this case. -- 2 of 2 --