Fantasy Pools Brisbane v Kelly [2014] QCATA 299

CITATION: Fantasy Pools Brisbane v Kelly [2014] QCATA 299 PARTIES: Fantasy Pools Brisbane (Applicant/Appellant) v Sean Kelly (Respondent) APPLICATION NUMBER: APL313-14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe, OAM DELIVERED ON: 22 October 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where written contract for pool renovation – where staged payments in contract – where invoices did not conform to stage payments – where variations to contract – cost of variations – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Rules 2009 (Qld) rr 48, 49 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] Fantasy Pools Brisbane entered into a written contract with Mr Kelly, on behalf of his father, to renovate a pool. The contract specified staged payments. Fantasy sent seven invoices and then the parties fell out. Fantasy terminated the contract and sent a final bill for $1,610.52. The bill included credits for work not done. Mr Kelly did not pay that bill so Fantasy filed an application for minor debt. [2] Mr Kelly filed a response which included a counter claim for overpayment damage and rectification of the work. Part of Mr Kelly’s counterclaim was that Fantasy’s credits did not mirror the contract’s stage payments. [3] Two Justices of the Peace, sitting in the minor civil disputes jurisdiction of the tribunal ordered Fantasy pay Mr Kelly $1,780.00. [4] Fantasy wants to appeal that decision. It says the learned Justices did not have a complete understanding of the contract. It says the learned Justices erred in accepting the stage payments as the correct value for the work. [5] 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 [6] Fantasy filed two invoices with its application for leave to appeal. The appeals 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 Fantasy 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 [7] The fresh evidence relates to the value of the credits Fantasy gave Mr Kelly. Fantasy knew that the value of the credits was an issue in the dispute. It did not produce these invoices at the hearing and it has not explained why. That evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Justices. [8] 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 4 -- 3 may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.5 [9] Fantasy explained to the learned Justices6 that the stage payment was not necessarily the actual cost of the work to that stage. The learned Justices accepted that proposition7. However, the learned Justices pointed out that the tribunal needed evidence of the value of the credits and the only evidence before them was the contract itself and Mr Kelly’s quotes. [10] Fantasy submits that the tribunal should look at the contract as a whole. There are two problems with this submission. The first is that Fantasy has not made any submissions about how the contract supports its claim. It made no submissions to the learned Justices and it makes no submissions here. [11] The second problem is that Fantasy did not comply with the stage payment schedule. The contract states that the designated stages are for progress payments. That assumes that the work would be invoiced in the same order as the stages. Contrary to the schedule, Fantasy invoiced the second last stage – prepare and install pebble interior – as its third invoice. It invoiced chemicals – the last stage – half way through the job. [12] There is no evidence of a variation for the fence and retaining wall, even though the contract requires a document signed by the parties8. If Fantasy had complied with the contract, and given a written estimate of the credit when Mr Kelly asked for the deletions, then the parties would probably not be before the tribunal. [13] Fantasy submits that the tribunal should not have considered Mr Kelly’s counterclaim during the hearing. [14] Rule 48(3) of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) states that a party cannot bring a counter application to an application for a minor debt. However, r 49 states that, if there appears to be a counterclaim, the tribunal can give directions it considers appropriate in relation to that matter. Section 62 of the QCAT Act gives the tribunal a wide discretion about the sorts of orders it may make for the efficient conduct of proceedings. [15] There is no suggestion that Fantasy was surprised by Mr Kelly’s claim for rectification and there is no suggestion that Fantasy was disadvantaged by the learned Justices’ decision to hear the counterclaim. Although they did not formally order, the learned Justices effectively directed that the two claims be heard together. That decision was consistent with the tribunal’s 5 Chambers v Jobling (1986) 7 NSWLR 1 at 10. 6 Transcript page 1-15, lines 8 – 26. 7 Transcript page 1-24, line 42. 8 Clause 6. -- 3 of 4 -- 4 objective to deal with matters in a way that is fair, economical, informal and quick9. [16] The learned Justices had evidence to support the counterclaim and Fantasy, in fact, admitted that it was responsible for some of the damage. The evidence can support the learned Justices’ decision on the counterclaim. [17] There is no reasonably arguable case that the learned Justices were in error. Leave to appeal should be refused. 9 QCAT Act s 3(c). -- 4 of 4 --