Feros v Bailey [2015] QCATA 34

CITATION: Feros v Bailey [2015] QCATA 34 PARTIES: Charles Feros (Applicant/Appellant) v Anthony Bailey (Respondent) APPLICATION NUMBER: APL487-14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM DELIVERED ON: 9 March 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 23 October 2014 is set aside. 4. The proceeding is remitted to the tribunal for rehearing. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – UNLICENSED BUILDING – where quote for painting – where contractor unlicensed – where contractor claimed full cost of quote plus variations – where tribunal ordered in favour of contractor – whether grounds for leave to appeal Queensland Building and Construction Commission Act 1991 (Qld) s 42 Fox v Percy (2003) 214 CLR 118 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 2 -- 2 REASONS FOR DECISION [1] In November 2013, Mr Feros received a quote from Wilson & Bailey for painting works to his properties in East Brisbane. The quote was just under $3,300, which meant that a contract in writing was not required under the Domestic Building Contracts Act 2000 (Qld). [2] Mr Bailey invoiced the work on a tax invoice from “Tony Bailey trading as Heritage Painting”. Mr Feros did not pay the full invoice amount as he formed the view that Mr Bailey did not complete the work in the quote. Mr Bailey filed a claim for the unpaid invoices. Two Justices of the Peace, sitting in the minor civil disputes jurisdiction of the tribunal, ordered Mr Feros pay Mr Bailey $2,243.90. [3] Mr Feros 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 Feros’ primary argument is that the learned Justices did not consider his evidence that Mr Bailey was unlicensed. [5] The transcript does show that Mr Feros told the learned Justices that Mr Bailey was unlicensed.3 Mr Bailey did not deny that he was unlicensed. The learned Justices told Mr Feros that this fact was not part of the hearing.4 [6] Section 42 of the Queensland Building and Construction Commission Act 1991 (Qld) states that a person must not carry out building work unless the person holds a contractor’s licence. Section 42(3) states that a person who does carry out work while unlicensed is not entitled to any monetary or other consideration for doing so. A person may claim reason able remuneration for carrying out the work but may not claim for labour or profit.5 [7] Mr Bailey was unlicensed. He was not entitled to charge for his labour or profit. The learned Justices failed to take this matter into account in coming to their decision. Leave to appeal should be granted and the appeal allowed. The decision of 23 October 2014 is set aside. The proceeding is remitted to the tribunal to determine whether Mr Bailey is entitled to any further payment. 1 QCAT Act s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 at [3]. 3 Transcript page 1-22, lines 15 – 23; page 1-27, lines 22 – 27. 4 Transcript page 1-2, lines 29 – 30. 5 Queensland Building and Construction Commission Act 1991 s 42(4). -- 2 of 2 --