Davey v Allblack Central [2014] QCATA 75

CITATION: Davey v Allblack Central [2014] QCATA 075 PARTIES: Peter Davey Amanda Davey (Applicants/Appellants) v Nicholas Fallbrown t/as Allblack Central (Respondent) APPLICATION NUMBER: APL545 -13; APL577 -13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe, OAM DELIVERED ON: 7 April 2014 DELIVERED AT: Brisbane ORDERS MADE: APL545 -13 1. Leave to appeal granted. 2. Appeal allowed 3. The decision of 14 November 2013 is set aside. 4. Nicholas Fallbrown t/as Allblack Central shall pay Peter Davey and Amanda Davey $16,500.00 [within 28 days of today’s order]. APL577 -13 5. Leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – TRADER CLAIM – where defective asphalt paving – where tribunal found paving contractor liable for defective paving – whether evidence supported tribunal’s finding – where tribunal assessed damages on diminution in value of property – whether assessment of damages appropriate – whether alternative assessment of damages appropriate – whether grounds for leave to appeal -- 1 of 4 -- 2 Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Pickering v McArthur [2005] QCA 294 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] Mr and Mrs Davey have a long asphalt driveway leading to their home in semi-rural Samford. In 2010, they engaged Mr Fallbrown to extend areas of asphalt paving. Mr Fallbrown completed the paving. Mr and Mrs Davey paid him $17,000. [2] The paving started to fail. Mr Fallbrown refused to rectify the paving so Mr and Mrs Davey filed a claim for a refund of the $17,000. Eventually, after three separate days of hearing over an extended period, an Adjudicator found that Mr Fallbrown’s paving was defective. He ordered Mr Fallbrown pay Mr and Mrs Davey $5,110. [3] Both sides want to appeal the learned Adjudicator’s decision. Mr Fallbrown says the learned Adjudicator erred in finding he was responsible for the failure of the paving. Mr and Mrs Davey say the learned Adjudicator erred in assessing the appropriate compensation. [4] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as His Honour then was) in Pickering v McArthur1: There are numerous authorities, in varying language but with unvarying emphasis, that 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. Mr Fallbrown’s appeal [5] Mr Fallbrown says his agreement with Mr and Mrs Davey was to supply, deliver and lay 10 mm asphalt 30 mm thick in the pre-existing base and that is what he did. He says that the paving failed because of a defect in the base, not because of his work. He says he should not be liable to pay Mr and Mrs Davey anything. [6] The learned Adjudicator considered these arguments when coming to his decision. He accepted the conclusions from independent experts that the 1 [2005] QCA 294 at [3]. -- 2 of 4 -- 3 paving failed because of the way it was laid, not because of the condition of the base. [7] The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.2 An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.3 [8] Although there is some evidence from a core sample that the base was the problem, that evidence was not accepted. There was only one core sample taken in a very large area. Mr Fallbrown had the technical results of the core sample but he did not have the benefit of an expert interpretation of those results. The core sample is the only evidence of a base failure and the experts took a different view. The learned Adjudicator chose to accept the experts’ view. The evidence can support the learned Adjudicator’s finding. There is nothing in the material that persuades me the learned Adjudicator should have taken a different view of the facts. [9] There is no reasonably arguable case that the learned Adjudicator was in error. Mr Fallbrown’s application for leave to appeal should be refused. Mr and Mrs Davey’s appeal [10] The learned Adjudicator accepted4 that the proper measure of damages was the amount required to put Mr and Mrs Davey into the position they would have been in had Mr Fallbrown performed the contract correctly. Mr and Mrs Davey presented three quotes for rectification, ranging from $16,500 to $35,538.67. [11] The learned Adjudicator rejected all quotes because he found that they included work on the base that was not part of Mr Fallbrown’s original specification. He also found that, if any of the quotes was accepted, Mr and Mrs Davey would have a better driveway than if Mr Fallbrown had completed his work properly. [12] It is true that the quote from Austek Asphalt Services, which is the most expensive, contemplates rectification work to the base. Mr and Mrs Davey admitted that this quote was “overkill”5. It does suggest an improved result and the learned Adjudicator was right to discount it. [13] Mr Fallbrown pointed out that the quote from Australian Asphalt Specialists contemplated two layers of asphalt, not one6. It also contemplates 40 mm of asphalt whereas Mr Fallbrown quoted for 30 mm of asphalt. If that quote was accepted, Mr and Mrs Davey would have a 2 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. 3 Chambers v Jobling (1986) 7 NSWLR 1 at 10. 4 Reasons for decision at [16]. 5 Transcript Day 3, page 2-23, lines 37-39. 6 Transcript Day 3, page 2-22, lines 29-38. -- 3 of 4 -- 4 better result than Mr Fallbrown’s quoted work. Again, the learned Adjudicator was right to reject that quote. [14] However, the quote from Asphalt Concepts does appear to be limited to rectification of the defective work. Indeed, Mr and Mrs Davey say that it does not address all of the defective work7. It appears that Mr Fallbrown’s submissions – that the quotes all included work on the sub base - led the learned Adjudicator into error. The learned Adjudicator erred in failing to accept the quote from as Asphalt Concepts evidence of the true measure of damages. [15] The learned Adjudicator assessed the measure of damages on the diminution of the value of Mr and Mrs Davey’s property because of the defective driveway. The learned Adjudicator had no evidence to assist him in that assessment. He then proceeded to assess the value of the work that was not defective. Again, he had no evidence to assist him in that task. In an effort to produce what he saw as a fair result, the learned Adjudicator fell into error. [16] Leave to appeal should be granted and the appeal allowed. The decision of 14 November 2013 is set aside. Nicholas Fallbrown t/as Allblack Central shall pay Peter Davey and Amanda Davey $16,500.00 [within 28 days of today’s order]. 7 Transcript Day 3, page 2-23, lines 26-28. -- 4 of 4 --