Carrick v Stainless Water Tanks Pty Ltd [2014] QCATA 263

CITATION: Carrick v Stainless Water Tanks Pty Ltd [2014] QCATA 263 PARTIES: Rebecca Louise Carrick (Appellant) v Stainless Water Tanks Pty Ltd (Respondent) APPLICATION NUMBER: APL029-14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Acting Senior Member Paratz DELIVERED ON: 3 September 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – whether grounds for leave to appeal – where a water tank collapsed – whether there was a defect in the tank – where it was held that the failure resulted from insufficient footings which were not provided by the manufacturer – where the report of a consultant as to the failure of the tank was not accepted – where no error of law was argued and where the findings of fact were open to the tribunal – where no arguable case that the Tribunal was in error arose Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i) Pickering v McArthur [2005] QCA 294 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Cachia v Grech [2009] NSWCA 232 at 2 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 -- 1 of 4 -- 2 Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 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). REASONS FOR DECISION [1] Ms Carrick purchased a 5,000 litre stainless steel water tank on 10 February 2009 from Stainless Water Tanks Pty Ltd (Stainless). She had it installed herself at her home at Camp Hill in Brisbane. On 25 January 2013 the tank suffered a catastrophic failure, and collapsed and was damaged beyond repair. [2] Ms Carrick filed an application in the Tribunal on 30 August 2013 seeking an amount of $3,900.00 as the replacement value of the tank and the value of work to remove the old tank and install a new one. [3] The Tribunal, comprised of two Justices of the Peace, made an Order on 29 November 2013 that the application be dismissed. [4] Ms Carrick filed an application for leave to appeal on 21 January 2014. Directions were made on 28 January 2014, 31 March 2014, 12 May 2014 and 15 July 2014 as to submission of material and for a determination On the Papers. This is the decision on the application for leave to appeal. [5] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.1 [6] The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?2 Is there a reasonable prospect that the applicant will obtain substantive relief?3 Is leave necessary to correct a substantial injustice to the applicant caused by some error?4 Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?5 [7] The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.6 An appellate tribunal 1 QCAT Act s 142(3)(a)(i). 2 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 3 Cachia v Grech [2009] NSWCA 232 at 2. 4 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 5 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580. 6 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.7 [8] The water tank collapsed at a time when Brisbane was experiencing heavy rain. [9] Ms Carrick initially sought to claim on her home insurance for the collapse of the tank. Her insurer, Suncorp engaged Jeffrey Hills and Associates Pty Ltd, professional building and structural services consultants, to investigate and report on the failure. They provided a report dated 27 May 2013 which referred to failure of the internal ladder-type bracing system which was spot-welded to the tank and pulled away from the inner skin, causing holes in the skin and collapse of the tank, and concluded that:8 The failure of the stainless steel rainwater tank cannot be attributed to any insurable event (rain event in January 2013), and the insured should seek compensation/ repair/ replacement through the manufacturer of the tank. [10] Oral evidence was given on the hearing by Ms Carrick and Mr Robertson (a Director of Stainless). The report of Jeffrey Hills and Associates was before the Tribunal, but the author did not give evidence. [11] Mr Robertson argued that the there was no defect in the tank, and that the failure occurred because the tank was not supported on a proper base. He said that the tank when full would weigh 5 tonnes. His company had not installed the tank. [12] He took issue with the report of Jeffrey Hills for not looking into the footings, and said the tank was not properly supported:9 Francis JP: What’s your opinion? Mr Robertson: Okay. My opinion is, if he had actually looked into the – the footing that the tank was sitting on, his assumption, probably, would’ve been quite different. Because at – at one end of the tank, we actually – there’s some pavers down on – on the flooring that the tank’s supported by. Francis JP: Mmm. Mr Roberston: And my offsider, Paul, my production manager, he stood on one of the pavers and it- and it - it wobbled. So he thought “I wonder what that is?”. So he inspected it further and actually pulled the paver up off the ground. And the tank is actually supported from the footing on one side of the house and it’s actually – on the retaining wall of the house, it’s actually got a – a timber block screwed to the retaining wall, which is also a timber pine – timber retaining wall… Francis JP: Mmm. Mr Robertson: … and it’s got timber sleepers going across it over 700 wide, with pavers sitting directly on that. So there’s actually nothing really supporting the centre of the tank. 7 Chambers v Jobling (1986) 7 NSWLR 1 at 10. 8 Report Jeffrey Hill & Associates Pty Ltd, 27 May 2013, Summary. 9 Transcript p 1-21, line 29. -- 3 of 4 -- 4 [13] Mr Robertson went on to say that the Australian Standard required that the tank be supported on a base designed to adequately support the weight of the tank and its contents. He said that he asked Ms Carrick’s husband about the base, who said that he had put it in himself and that it was not engineered. [14] Mr Robertson said that he measured the base after the collapse with a laser level, and that it sloped 15 millimetres towards the fence line over the base of 700 millimetres. He said it was possible that the loss of level resulted from the rain in that month. He described there being a void underneath the tank, and that you can actually see the footing of the side of the house. [15] The decision of the tribunal is succinct, and it is convenient to reproduce it: Francis JP: All right. Well, thank you for coming back. This is matter number 1768 of 13 concerning a damaged water tank. Now we’ve heard both of you. We’ve heard your evidence and we’ve seen the physical evidence that you’ve provided. On the one hand, the applicants produced a report – a site report – that says this is a poorly made tank. Now we can’t agree with this report because there’s no real evidence that the tank was poorly made. The photos appear to show a bracing system that’s done its job. The tank lasted for over three years, which is the manufacturer’s warranty – three years. Our opinion is that it really comes down to the quality of the footings. Something catastrophic happened over the holiday weekend which caused the tank to fail. We’re inclined to the view that this was probably due to a failure in the footings, so we’ve decided that the claim should be dismissed. [16] In her submission on this application, Ms Carrick reiterates the matters she put before the Tribunal. She does not raise any error of law. Stainless also reiterate the matters they put before the tribunal. [17] There is nothing in the transcript that persuades me that the Tribunal should have taken a different view of the facts. The Tribunal has considered all relevant matters and the evidence before it, and has made a decision that was open to it. [18] There is no reasonably arguable case that the Tribunal was in error. [19] Leave to appeal should be refused, and I order accordingly. -- 4 of 4 --