Churchill v Lye [2016] QCATA 70

CITATION: Churchill v Lye [2016] QCATA 70 PARTIES: Craig Churchill (Applicant/Appellant) v Paul Lye (Respondent) APPLICATION NUMBER: APL002 -16 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM DELIVERED ON: 16 May 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused CATCHWORDS: APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – MINOR DEBT – where invoices for website work – where respondent alleged that two invoices already paid – where respondent could not prove payment at hearing – where respondent provided proof of payment with application for leave to appeal – where respondent alleged he did not agree to web hosting services – where web hosting necessary - whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Pickering v McArthur [2005] QCA 294 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Chambers v Jobling (1986) 7 NSWLR 1 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). -- 1 of 3 -- 2 REASONS FOR DECISION [1] Paul Lye agreed to provide search engine optimisation for Black & White Home Services, a cleaning business operated by Craig Churchill. Mr Lye sent invoices, some of which Mr Churchill paid. Mr Churchill became dissatisfied with Mr Lye’s work, so cancelled the search engine optimisation. Mr Lye then sent an invoice for web hosting. [2] Eventually, Mr Lye filed a claim for unpaid invoices. The tribunal ordered that Mr Churchill pay Mr Lye. [3] Mr Churchill 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 The disputed invoices [4] Mr Churchill says that he now has proof that he paid two of the claimed invoices. He also says that he never agreed to pay for the web hosting once the search engine optimisation service was cancelled. [5] Mr Churchill filed evidence of payment of the two disputed invoices with his application for leave to appeal. The appeal tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could the parties have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?3 [6] An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party’s case at the initial hearing. Mr Lye filed his claim in August 2015. In a letter to the tribunal dated 10 November, 2015, Mr Churchill told the tribunal that the two disputed invoices had been paid in full. The tribunal heard the dispute on 4 December 2015. Mr Churchill does not explain why, in over three months, he did not take the precaution of obtaining proof of payment. The fresh evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the tribunal. [7] The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.4 An appellate tribunal 1 QCAT Act, s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 at [3]. 3 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408. 4 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. -- 2 of 3 -- 3 may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.5 [8] The tribunal had to decide between two competing versions. Both parties gave evidence on oath. The tribunal found in favour of Mr Lye and I can find no compelling reason to come to a different view. Web hosting [9] At the hearing, Mr Churchill submitted that he had paid $97.50 in advance for the proportion of the web hosting that related to the period he stayed with Mr Lye after cancelling the search engine optimisation service. In a text sent on 7 August 2015, Mr Churchill acknowledged that web hosting was necessary. It is, therefore, arguable that Mr Churchill did agree to Mr Lye arranging the web hosting, albeit after the fact. [10] If Mr Lye didn’t host the website, some other provider would have done so, and, probably, at a similar cost. Even if Mr Lye breached the contract that he had with Mr Churchill, the cost of web hosting cannot be a measure of damage, because it was an essential element of maintaining a web site. [11] There is no reasonably arguable case that the tribunal was in error. Leave to appeal should be refused. 5 Chambers v Jobling (1986) 7 NSWLR 1 at 10. -- 3 of 3 --