Anderson v Aussie Build (QLD) Pty Ltd [2014] QCATA 297

CITATION: Anderson v Aussie Build (QLD) Pty Ltd [2014] QCATA 297 PARTIES: Errol and Diana Anderson (Applicants/Appellants) v Aussie Build (QLD) Pty Ltd (Respondent) APPLICATION NUMBER: APL354-14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe, OAM DELIVERED ON: 21 October 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 18 August 2014 is set aside. 4. Errol Anderson and Diana Anderson shall pay Aussie Build (Qld) Pty Ltd $460.00 within 28 days of the date of this order. 5. If Errol Anderson and Diana Anderson complied with the decision of 18 August 2014, then Aussie Build (Qld) Pty Ltd shall refund $468.16 to Errol Anderson and Diana Anderson within 14 days or the date of this order. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – whether grounds for leave to appeal Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379 Pickering v McArthur [2005] QCA 294 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 5 -- 2 REASONS FOR DECISION [1] Mr and Mrs Anderson signed a contract to buy a house that was subject to a satisfactory building and pest inspection. On 11 October 2012, Mr Anderson rang Aussie Build (QLD) Pty Ltd and spoke to Mr Breslin. They arranged to meet on site on 15 October 2012. Mr Breslin conducted an inspection on that date and had a short discussion with the Andersons. [2] On 18 October 2012, Mr Breslin told the Andersons that they would receive a report when they paid Aussie Build’s invoice. The Andersons did not pay the invoice. They did not receive the report. Aussie Build filed an application for payment of the invoice. Two Justices of the Peace, sitting as the tribunal in its minor civil disputes jurisdiction, ordered the Andersons pay Aussie Build $928.16. [3] The Andersons want to appeal that decision. They say that the learned Justices erred in failing to consider the implications of the Queensland Building and Construction Commission Act 1991 (Qld), the Australian Consumer Law, ‘Fair Trading Law’ and taxation law. They also refer to ‘s 216’. I interpret that to be a reference to s 216 of the QCAT Act. [4] 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 [5] The learned Justices decided that the Andersons should pay for the report because ‘They received enough of the report, whether it was oral or written, such that it was satisfaction to cancel the contract’.3 That decision misses the point of the dispute before the learned Justices. The issue for their determination was whether the Andersons were bound by terms of agreement, they say they never received, to pay the invoice before they received the report. This was an important question because the Andersons told the learned Justices they were prepared to pay the invoice on receipt of the written report but not before4. [6] The learned Justices were in error in failing to decide the terms of the agreement between the parties. Leave to appeal should be granted. [7] It then falls to me to determine the terms of the agreement. I have to decide whether it was a term of the agreement that the report would not be provided until the invoice was paid. I also have to decide whether the credit terms on the invoice were terms of the agreement between the parties. 1 QCAT Act s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 at [3]. 3 Transcript page 1-27, lines 15 – 17. 4 Transcript page 1-7, lines 11 – 13. -- 2 of 5 -- 3 [8] Unless there is a course of dealing between parties, a party who relies on particular terms of a contract must show that it did all that was reasonable, in the circumstances of the case, to bring the terms to the attention of the other party5 prior to or at the same time as the contract is made so that the parties can be said to have agreed to the terms. [9] There was no course of dealing between Mr Breslin and the Andersons. Therefore, Mr Breslin had to establish that he brought the terms of the contract to the Andersons’ attention before, or when, they engaged Aussie Build. [10] Mr Breslin told the tribunal6 that he posted and emailed his terms of trade and an invoice to the Andersons on 14 October 2012, the day before the inspection. That day was a Sunday. There is no way the Andersons could have received the posted document before the inspection on 15 October 2012. [11] The tribunal asked Mr Breslin for evidence that he emailed the document. He could not produce a copy of the email. He could not provide any other documentary evidence. The tax invoice dated 14 October 20127 and the timber pest inspection agreement8 do not support Mr Breslin’s evidence. There is no reference to an email address for the Andersons on either document. [12] Mr Breslin was not asked to explain why the agreement and tax invoice did not issue on 11 October, the day he received instructions, or 12 October, the day after, both of which were business days. The learned Justices also made the point9, which has not been addressed, that Mr Breslin did not bring the timber pest inspection agreement to the inspection on 15 October 2012. [13] The Andersons state that they never received the timber pest inspection agreement until the tribunal proceedings started10. They point out that the agreement is not signed. They drew the learned Justices’ attention to the discrepancy in the tax invoice of 14 October 2012 showing a bank account that was inconsistent with a tax invoice of 29 January 2012 which they did receive11. [14] The learned Justices had difficulty with Mr Breslin’s evidence12. I find that, on the evidence before the learned Justices, Mr Breslin did not send the agreement, or the invoice with terms of trade, to the Andersons prior to the inspection. I therefore find that it was not a term of the agreement that the Andersons had to pay the invoice before receiving the report. I also find 5 Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379 at 386. 6 Transcript page 1-9, lines 11 – 15. 7 Applicant’s material page 103. 8 Applicant’s material page 133. 9 Transcript page 1-11, line 46 to page 1-12, line 5. 10 Transcript page 1-9, lines 25 – 32. 11 Transcript page 1-19, line 18 to page 1-20, line 38. 12 Transcript page 1-12, line 7 to page 1-13, line 22. -- 3 of 5 -- 4 that it was not a term of the agreement that, if the invoice was not paid within seven days, Aussie Build could impose credit collection costs. [15] The decision of 18 August 2014 should be set aside. [16] The Andersons submit that Aussie Build breached the Australian Standards because they did not have a pre-engagement agreement before the inspection commenced. They rely on information published by the Queensland Building and Construction Commission. [17] That submission might be right, although the relevant Australian Standard was not in evidence before the learned Justices. A breach of a Standard, however, does not automatically mean that a party is relieved of an obligation to pay for a service provided. It might be the basis for a complaint to the Queensland Building and Construction Commission. That is a matter for the Andersons, not this tribunal. [18] The Andersons have relied on website information about the Australian Consumer Law to submit that Aussie Build has breached its obligation to provide an itemised bill of service within 7 days of a request. Section 101 of the Australian Consumer Law does state that a supplier must supply an itemised bill within 7 days after a request in made. That does not mean that the Andersons do not have to pay the bill that did issue. The Australian Consumer Law provides that a person may receive compensation for loss or damage because of the breach13. That is a different test and not one argued before the learned Justices. [19] The Andersons also made submissions based on information from the Fair Trading website to suggest that the report had to be suitable for a specific purpose and it was not. In fact, it seems the Andersons are relying on s 61 of the Australian Consumer Law which states that, if the consumer states that the supply of services is required for a particular purpose, then there is a guarantee that the services will be fit for that purpose. [20] That section might apply if Aussie Build did not supply a report until after the date on which the Andersons could terminate their contract. That is not what happened. Aussie Build did produce a report but the Andersons refused to pay for it in advance. It is doubtful whether s 61 would respond to this situation. It is also an issue that was not raised before the learned Justices. [21] Section 216(1) of the QCAT Act states that a person must not state to an official anything the person knows is false or misleading in a material particular. It creates an offence for a breach. Section 19 of the Justices Act 1886 (Qld) states that the Magistrates Court, not the tribunal, has jurisdiction for offences of this nature. 13 Australian Consumer Law s 237. -- 4 of 5 -- 5 [22] As the learned Justices observed14, Mr Breslin did do an inspection and the Andersons made certain decision based on his initial observations. That had some value to the Andersons and it is right that they should pay for it. [23] The Andersons now have a tax invoice and a copy of the report. Although it is no use to them now, they have received what they originally bargained for. I order the Andersons pay Aussie Build $460, the amount of the original invoice. [24] The ‘credit terms’ on the bottom of the invoice were not part of the contract when the Anderson engaged Aussie Build. I therefore decline to order interest or credit collection costs. 14 Transcript page 1-26, lines 17 – 19. -- 5 of 5 --