Ashley Mansfield t/as A.B. Mansfield Plant Hire v Trung Electrical Pty Ltd [2015] QCATA 163

CITATION: Ashley Mansfield t/as A.B. Mansfield Plant Hire v Trung Electrical Pty Ltd [2015] QCATA 163 PARTIES: Ashley Mansfield t/as A.B. Mansfield Plant Hire (Applicant/Appellant) v Trung Electrical Pty Ltd (Respondent) APPLICATION NUMBER: APL315 -15 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM DELIVERED ON: 27 February 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – MINOR DEBT - where application to reopen successful – where tribunal stated decision would be delivered after hearing scheduled for week in advance – whether procedural bias – whether evidence could support tribunal findings - 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 4 -- 2 REASONS FOR DECISION [1] Ashley Mansfield asked Trung Electrical Pty Ltd to install wiring in Mr Mansfield’s shed at Blacksoil. As is unfortunately common, neither Trung nor Mr Mansfield bothered to put the scope of work, or the terms of payment, in writing. Trung performed the work and issued an invoice. Mr Mansfield did not pay the invoice, so Trung filed a minor debt claim in the tribunal. [2] Mr Mansfield did not file a response, so Trung entered a decision in default. Mr Mansfield applied, successfully, to reopen the proceeding. After hearing the parties, the tribunal ordered Mr Mansfield pay Trung the amount of its invoice. [3] Mr Mansfield 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 Mansfield says that the tribunal displayed procedural bias against him because, at the end of the reopening proceedings, the learned Adjudicator stated to Trung that it would have an order following the hearing. Mr Mansfield submits that the learned Adjudicator’s comment suggests that he had already decided the matter before hearing any evidence. [5] Trung filed its application for minor debt on 20 February 2014. There was, apparently, difficulty in finding and serving Mr Mansfield. After the default decision, Trung thought it had a decision that it could enforce only to find, over twelve months later, that the proceeding was not finished. It is understandable that Trung might be disappointed by the delay. It is understandable that the learned Adjudicator would point out to Trung that, when he hears the matter a week later, he would deliver a decision and the proceeding would then be finished. I do not accept that a promise to deliver a quick decision amounts to procedural bias. [6] At the commencement of the hearing held after the reopening hearing, the learned Adjudicator stated3: The matter was reopened last time. You weren’t here. It was very much a technical matter, that meant it should be reopened. Your client’s probably upset about that, but nevertheless, that’s what is provided for in the Act: that’s what’s happened. It’s going to be heard to day … Heard today as if it were brand new. Right. So you need to start opening the applicant’s case as to what he wants 1 QCAT Act s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 at [3]. 3 Transcript page 1-2, line 40 to page 1-3 line 2. -- 2 of 4 -- 3 [7] Clearly, the learned Adjudicator demonstrated his willingness to hear and determine the proceeding afresh. [8] Mr Mansfield also says that the learned Adjudicator’s decision was against the weight of the evidence. He says that a third person supported his version of events and the learned Adjudicator should have accepted their evidence rather than the evidence of Mr Win, on behalf of Trung. [9] 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 may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.5 [10] There were two disputes of fact between the parties. The first was the scope of work; Mr Mansfield asserted that Trung was to supply and install lighting and power whereas Trung asserted the job was limited to the lighting. The second dispute was whether Trung agreed to do the work on a lump sum or whether it was entitled to charge an hourly rate. [11] The third party, Mr McGrath, worked for Mr Mansfield. His evidence, at best was: a) Mr Mansfield told Mr Win that he wanted sockets in every second bay6. b) Trung said the cost would be “about 10 grand”7. c) Trung wanted to work on an hourly rate but Mr Mansfield refused8. [12] Mr McGrath’s evidence falls short of proving the contract for which Mr Mansfield contended. Even Mr Mansfield’s evidence is vague in some respects; an agreement to do work for “about $10,000” is not an agreement to do work for a fixed sum of $10,000. [13] The learned Adjudicator had to decide which version of the contract terms was more likely. He found that the scope of work was extensive, involved mixed use of assets (some from Mr Mansfield, some from Trung), and involved mixed use of materials (including second-hand lights provided by Mr Mansfield).The learned Adjudicator observed that the use of second hand materials sometimes involves extra labour. He accepted the material costs at $2,779, almost one third of the invoice. The learned Adjudicator concluded that, in those circumstances, the weight of the evidence did not favour a lump sum contract for $10,000. The evidence can support the learned Adjudicator’s finding and I can find no compelling reason to come to a different view. 4 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125- 126. 5 Chambers v Jobling (1986) 7 NSWLR 1 at 10. 6 Transcript page 1-43, lines 3 - 8 7 Transcript page 1-43, lines 15 - 16 8 Transcript page 1-43, lines 24 - 25 -- 3 of 4 -- 4 [14] There is no reasonably arguable case that the learned Adjudicator was in error. Leave to appeal should be refused. -- 4 of 4 --