Earthworks Mechanical Repairs and Services Pty Ltd v Khan [2015] QCATA 41

CITATION: Earthworks Mechanical Repairs and Services Pty Ltd v Khan [2015] QCATA 41 PARTIES: Earthworks Mechanical Repairs and Services Pty Ltd (Applicant/Appellant) v Shahid Khan (Respondent) APPLICATION NUMBER: APL536-14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice D Thomas, President DELIVERED ON: 20 March 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 11 November 2014 is set aside. 4. Upon payment by Shahid Khan of $1,033.48, Earthworks Mechanical Repairs and Services Pty Ltd shall return the original parts removed from the backhoe forthwith and no later than seven days after payment. CATCHWORDS: APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – CONSUMER CLAIM – where oral quote to repair backhoe – where further oral quote accepted by Respondent’s daughter – where further written quote later rejected by Respondent – where application for relief from payment – where orders made included orders for costs – whether costs payable – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 32, 97(3), 97(4)(b), 100, 142(3)(a)(i) -- 1 of 5 -- 2 Queensland Civil and Administrative Tribunal Rules 2009 (Qld) rr 83(b), 84(1)(c) Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Pickering v McArthur [2005] QCA 294 Chambers v Jobling (1986) 7 NSWLR 1 Solar Water Pumping v Cameron [2014] QCATA 29 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] Mr Khan owns a backhoe worth about $5,000. He had trouble with the shuttle and torque converter, so he asked Earthworks Mechanical Repairs and Services Pty Ltd (“Earthworks”) to inspect the backhoe and quote the repairs. Earthworks verbally quoted $3,500, which Mr Khan accepted. [2] Earthworks started work on the backhoe and discovered more problems. Mr Khan was overseas so Earthworks spoke to his daughter, saying the work would be between $7,500 and $10,000. She authorised the undertaking of the work. Earthworks later sent through a written quote for $11,543.1 Mr Khan declined the quote and terminated Earthworks’ authority to repair. He then filed a claim in the minor civil disputes jurisdiction of the tribunal for an order that he be relieved of any payment obligation to Earthworks and that the backhoe parts be made available for his collection. [3] A Magistrate, sitting as a member of the tribunal, ordered that Mr Khan was entitled to the return of his backhoe parts upon his payment to Earthworks of $881.48. [4] Earthworks wants to appeal that decision. It submits that the learned Magistrate made a decision on 14 October 2014 that the parts were to be returned to Mr Khan upon his payment of $5,070 excluding GST. Earthworks says that, with no change in witnesses and in the same circumstances, the learned Magistrate made a different decision on 11 November 2014. It says it is unfair that Earthworks has to pay ‘court expenses’. It says that Mr Khan should pay for the work done at his request. [5] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.2 Leave to appeal will usually be granted where there is a reasonable argument that the decision is 1 Transcript Day 1 page 1-3, line 31. 2 QCAT Act s 142(3)(a)(i). -- 2 of 5 -- 3 attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.3 [6] I have read the transcripts of both hearings. At the end of the first day, the learned Magistrate made some calculations around the cost of putting the backhoe back together and fixing the torque converter. She arrived at a figure of $5,070.4 But she did not make an order to that effect. Instead, the learned Magistrate adjourned the hearing so that Earthworks could put the backhoe back together.5 She asked Mr Van Rheinfeld, who appeared for Earthworks, what condition the backhoe would be in after $3,500 worth of work.6 Mr Van Rheinfeld told the learned Magistrate that the backhoe would be returned in pieces, but the pieces had been repaired.7 Therefore, the learned Magistrate adjourned the hearing so that Mr Khan could get evidence of the current condition of the backhoe, what was required to fix it and the cost of that work.8 The learned Magistrate made it clear that, when the parties returned, she would assess the price payable for the return of the backhoe on that day, based on the fresh evidence. 9 [7] It is not correct to say that the learned Magistrate decided Mr Khan should pay Earthworks $5,070. It is not correct to say that the learned Magistrate made a different decision based on the same information. On the second day, the learned Magistrate had the benefit of a report from Dennis Smith from D. Smith Field Service. [8] The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.10 An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.11 [9] The learned Magistrate based her decision on the proposition that Mr Khan should pay Earthworks for the work he requested. In other words, the learned Magistrate found that the contract between the parties was formed by Mr Khan’s acceptance of the verbal quote for $3,500. The evidence can support that finding. [10] Earthworks argued that there was a second contract, or a variation to the contract, by Mr Khan’s daughter accepting the second quote for extra work at between $7,000 to $10,000. There were three difficulties with that proposition. Firstly, there was no evidence that Mr Khan’s daughter had authority to bind her father. The second problem was that the work to be done under that quote was not certain.12 The uncertainty as to the scope 3 Pickering v McArthur [2005] QCA 294 at [3]. 4 Transcript Day 1 page 1-37, lines 4 – 43. 5 Transcript Day 1 page 1-40, lines 4 – 8. 6 Transcript Day 1 page 1-42, lines 15 – 16. 7 Transcript Day 1 page 1-42, lines 18 – 30. 8 Transcript Day 1 page 1-42, lines 35 – 39. 9 Transcript Day 1 page 1-43, line 37. 10 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125–126. 11 Chambers v Jobling (1986) 7 NSWLR 1 at 10. 12 Transcript Day 2 page 1-15, lines 27 – 31. -- 3 of 5 -- 4 of work supported a finding that a contract was not formed, or any contract was void for uncertainty. The third problem was that Mr Khan’s daughter conditionally accepted the quote, saying she would have to contact her father. [11] Mr Khan never accepted the third quote for $11,545. [12] Therefore, Earthworks was entitled to $3,500 under the first quote. The difficulty the learned Magistrate faced was that Earthworks had not completed that work because the backhoe was disassembled. The learned Magistrate appears to have found that there was a contract between the parties to perform the work for the sum of $3,500, Earthworks failed to perform the agreed work, and so the cost of remedy is that the default should be offset against the contract price. The learned Magistrate therefore deducted the cost of reassembly of the backhoe from Earthworks’ quoted costs for that work. The evidence can support the learned Magistrate’s approach and her calculations, and I can find no compelling reason to come to a different view. [13] Earthworks says that it should not pay the costs of the proceeding because it was unnecessary even to start the legal process. Mr Khan could have just paid Earthworks’ expenses and avoided court. As the learned Magistrate observed,13 there was not much communication between the parties. It was unlikely that the dispute could have resolved without tribunal proceedings. [14] The tribunal expects each party to bear its own costs of a proceeding.14 If the tribunal does order costs in a minor civil dispute proceeding, rule 83 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (“QCAT Rules”) limits the costs payable to the filing fee.15 The learned Magistrate ordered that Earthworks pay the filing fee, a bailiff fee and the cost of a subpoena. It is apparent from the transcript that the learned Magistrate did not turn her mind to rule 83. [15] The learned Magistrate ordered Earthworks pay Mr Khan two thirds of the filing fee. She was entitled to order that Earthworks pay Mr Khan the filing fee and there is no compelling reason to overturn the learned Magistrate’s exercise of that discretion. [16] The QCAT Rules permit an order for payment of the bailiff fee in minor debt claims.16 This is a consumer dispute claim, not a minor debt claim. Mr Khan is not entitled to the cost of the bailiff fee. [17] The appeals tribunal has already determined that a party cannot usually recover the cost of an expert’s attendance in the minor civil disputes jurisdiction.17 The appeals tribunal left open the possibility of recovering 13 Transcript Day 1 page 1-42, lines 4 – 45. 14 QCAT Act s 100. 15 QCAT Rules r 83(b). 16 Ibid r 84(1)(c). 17 Solar Water Pumping v Cameron [2014] QCATA 29. -- 4 of 5 -- 5 the cost of an expert who was required to attend by notice under s 97 of the QCAT Act. [18] Section 97(3) of the QCAT Act provides for the payment of fees and allowances to a witness. Section 97(4) states who must pay the witness fees and expenses. Section 97(4)(a) states that the fees must be paid by the party calling the witness. Section 97(4)(b) gives the tribunal power to order that the fees be paid by all of the parties in the proportion decided by the tribunal. Section 97 does not refer to the cost of obtaining the notice to produce from the tribunal. The learned Magistrate had no power to order Earthworks pay the subpoena fee. [19] The learned Magistrate allowed a subpoena fee of $122.00 and service fees of $30.00. Therefore, Mr Khan should pay Earthworks $881.48 plus those amounts before he is entitled to the return of his backhoe parts. [20] Because of the learned Magistrate’s error in ordering costs, leave to appeal should be granted and the appeal allowed. The decision of 11 November is set aside. Instead, upon payment by Mr Khan of $1,033.48, (being $881.48 + $122.00 + $30.00) the parts for the backhoe shall be returned forthwith and no later than seven days after payment. -- 5 of 5 --