Comino and Anor v AAD Designs Pty Ltd [2016] QCATA 155

CITATION: Comino and Another v AAD Designs Pty Ltd [2016] QCATA 155 PARTIES: Michael Comino Thalia Comino (Appellants) v AAD Designs Pty Ltd (Respondents) APPLICATION NUMBER: APL140-16 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: A/Senior Member Gordon DELIVERED ON: 25 August 2016 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142 Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Pickering v McArthur [2005] QCA 294 APPEARANCES: 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] This is an appeal (and an application for leave to appeal) brought by Mr and Mrs Comino who disputed a bill from AAD Design Pty Ltd for sub-division town planning work done by that company. -- 1 of 3 -- 2 [2] Mr and Mrs Comino were unable to proceed with their proposed sub- division because their neighbours did not agree to permit sewer works on their land. Mr and Mrs Comino said in the Tribunal below that therefore some of the work done by AAD was of no value to them, and in fact should not be paid for because they had not asked for that work to be done. [3] The claim was for $4,766.77 made up of $4,505.01 for the outstanding fees, and a small amount for interest and formal costs. [4] The Justices of the Peace hearing this claim as a “minor civil dispute” in Brisbane ordered Mr and Mrs Comino to pay this sum to AAD. They reached that decision after reading the documents and hearing the relevant evidence, then they adjourned the matter to consult together. On the resumption of the hearing a few minutes later, they gave their reasons. Their reasons appear from the transcript filed in this appeal.1 [5] The issues discussed at the hearing circulated around whether AAD went ahead and did work which they should not have done, because (as was submitted by Mr Comino) they should have been aware that such work would not have been needed and also would have no value if the neighbours were unwilling to permit sewer work on their properties. [6] The Justices of the Peace expressly addressed these issues. They found, as had been submitted by AAD, that their work preparing drawings showing the new position of the sewers was necessary in order to seek the informed consent from one of the neighbours.2 They found that indeed, Mr Comino had used the drawings in a meeting with that neighbour the very next day.3 Perhaps of central importance, they found that Mr and Mrs Comino had signed a contract engaging AAD to prepare the drawings (so that AAD was obliged to provide the drawings and Mr and Mrs Comino were contractually obliged to pay for them),4 and there was no reason for AAD not to prepare the drawings (they were not put on notice by Mr Comino that they should not do so after all).5 [7] The Justices of the Peace found that, on this basis, the work done by AAD itself and also its outlay in fees to a surveyor and civil engineer which it paid on Mr and Mrs Comino’s behalf, were justified.6 [8] Some other drawings were also prepared by AAD but not charged for.7 1 Transcript of Proceedings, Michael Comino and Another v AAD Design Pty Ltd (Queensland Civil and Administrative Tribunal, MCDO53587-15, Collier and Schmidt, 30 March 2016) at 1-36 to 1-39 (‘Transcript’). 2 Ibid, 1-37 line 16, 22. 3 Ibid, 1-37 line 18. 4 Ibid, 1-37 line 7; 1-38 line 20. 5 Ibid, 1-37 line 37, 45; 1-38 line 15, 21. 6 Ibid, 1-38 line 44 to 1-39 line 17. 7 Ibid, 1-38 line 46. -- 2 of 3 -- 3 [9] In this appeal, Mr and Mrs Comino raise the very same issues as were raised before the Justices of the Peace but contend that they should have reached a different conclusion. The difficulty with this is that the Appeal Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions of the original decision makers.8 The findings of fact reached by the Justices of the Peace were clearly open to them. [10] Some of the documents which Mr and Mrs Comino submit with the appeal were not before the Justices of the Peace. However, it was directed by the Appeal Tribunal that a party would not be allowed to rely on new evidence without its leave. Such leave has not been obtained. Such leave would not be given in this case because there is nothing to suggest that the new evidence was not available at the original hearing. For example, all the documents submitted by Mr and Mrs Comino in this appeal were in existence at the time of the original hearing and seemingly in their possession. Also, there is nothing in these documents which shows that the decision of the Justices of the Peace would have been different if they had seen them. [11] In addition to the above, there is nothing offered by Mr and Mrs Comino in this appeal which shows the Justice of the Peace applied the law wrongly to the facts which they found. [12] Because this is an appeal from a decision of the Tribunal in its minor civil disputes jurisdiction, leave to appeal is necessary.9 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.10 Mr and Mrs Comino have failed to show this in this appeal. [13] Leave to appeal should be refused. 8 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125- 126. 9 QCAT Act s 142(3)(a)(i). 10 Pickering v McArthur [2005] QCA 294 at [3]. -- 3 of 3 --