Campbell v Kerry M Ryan Pty Ltd [2013] QCATA 313

CITATION: Campbell v Kerry M Ryan Pty Ltd [2013] QCATA 313 PARTIES: Stephen John Campbell (Applicant) v Kerry M Ryan Pty Ltd (Respondent) APPLICATION NUMBER: APL372-12 MATTER TYPE: Appeals HEARING DATE: 18 September 2013 HEARD AT: Brisbane DECISION OF: G Trafford-Walker, Judicial Member S Deane, Member DELIVERED ON: 4 November 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. 2. The Respondent must file in the Tribunal and give to the Applicant a copy of any submissions on costs of the appeal, by 4:00pm on 11 November 2013. 3. The Applicant must file in the Tribunal and give to the Respondent a copy of any submissions on costs of the appeal, by 4:00pm on 18 November 2013. 4. The Respondent must file in the Tribunal and give to the Applicant a copy of any submissions in reply on costs of the appeal, by 4:00pm on 25 November 2013. 5. Any application for costs of the appeal will be determined on the papers without an oral hearing unless a party requests an oral hearing. CATCHWORDS: APPEAL – LEAVE TO APPEAL – BUILDING MATTER – where the applicant entered into a contract with the respondent to purchase a -- 1 of 5 -- 2 removal house – where the house was delivered to the applicant’s property but not positioned and stumped until later – where the applicant commenced proceedings in the Tribunal seeking damages for breach of contract – where the Tribunal dismissed the applicant’s claim – where the applicant seeks leave to appeal that decision – where the applicant seeks to rely on additional evidence – whether additional evidence reasonably available at original hearing – whether additional evidence should be allowed – whether leave to appeal should be granted Lida Build Pty Ltd v Miller and Anor [2011] QCATA 219, cited APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr CJ Chapman RESPONDENT: Mr S Neaves of Counsel, instructed by Jon Kent Lawyers REASONS FOR DECISION [1] On 2 August 2005, the Applicant, at the time an employee of the Respondent, entered into a written contract with the Respondent to purchase a removal house which was, then, at the premises of the Respondent. [2] The house was delivered to the Applicant’s property by a Sean Ryan, employee of the Respondent, on 13 October 2006. The house was not positioned and stumped on the site until early 2007. [3] A dispute had arisen between the parties which led to a hearing before the Tribunal on 30 and 31 January 2012. The Applicant claimed damages for a number of alleged breaches of contract. These claims were dismissed by the Tribunal Member on 3 August 2012, and the Applicant, now, seeks leave to appeal that decision. [4] At the commencement of the hearing, Mr Chapman sought leave to produce further evidence. He outlined the additional evidence as follows:  He wished to tender a Building Services Authority Certificate of Insurance;  He wished to tender a document relating to the Applicant’s disability; and -- 2 of 5 -- 3  That the Applicant be allowed to give evidence. In written submission, the request was worded as follows - “that Mr Campbell is required to be further questioned, that the questions be carefully worded and time referenced to avoid any confusion to a time limit of 15 minutes be placed on each occasion”. [5] In relation to these matters – the Certificate of Insurance had been in existence at the time of the original Tribunal hearing. The medical certificate relating to the Applicant’s disability was based on an examination in 2003. Information regarding this disability had been placed before the Tribunal (page 18 of the transcript), however no date had been given. The proposed medical certificate does not advance the Applicant’s case. However, if admitted, it would support the findings of the Member having regard to the date of the medical examination. Finally, the Applicant was represented by a Solicitor and a Barrister at the original hearing. He had prepared lengthy affidavits which were before the Tribunal and he was examined in chief and cross-examined. [6] Generally fresh evidence is not received on appeal. It is important that litigation be brought to a conclusion and often arguments to lead further evidence are attempts to re-litigate a matter in the hope of a different outcome. In the circumstances outlined by the Applicant, much of the evidence was not new and to recall the Applicant would have been in effect to re-litigate the matter. We refused leave to call additional evidence. [7] The basis upon which leave to appeal is granted was neatly summarised in the case of Lida Build Pty Ltd v Miller and Anor [2011] QCATA 219, as follows – Leave to appeal will ordinarily only be granted when a question of general importance upon which further argument and a decision of the Appeal Tribunal is to public advantage; there is a reasonably arguable case that the primary decision- maker made an error and there are reasonable prospects that the applicant would be granted orders in its favour; or to correct a substantial injustice to the applicant caused by error. (Footnotes omitted.) [8] The claim for damages in this case is based upon an allegation of breach of contract involving the removal of a house. The dispute between the parties does not involve a question of general importance where further argument and a decision of this Tribunal is to the public advantage. Leave to appeal would not be granted on that basis. [9] The remaining matters require some brief examination of the evidence and the decision of the Tribunal member. [10] At page 18 of the transcript, the Applicant gave evidence that he suffered from Scopic Sensitivity Syndrome, which he said is an intellectual disability where the right side of the brain does not talk to the left side. Or, as Counsel suggested, a form of Dyslexia, which was accepted by the Applicant. In relation to that, the Member of the Tribunal said “Mr -- 3 of 5 -- 4 Campbell did not exhibit any obvious signs of intellectual disability. Accordingly, I have placed no weight on his evidence about the condition and its manifestations.” [11] In this regard, the Member had ample opportunity to evaluate the Applicant. His evidence is recorded on pages 13 to 38 of the transcript. He was examined in chief and cross-examined. There was also before the Member two lengthy affidavits sworn by the Applicant. Having seen and heard the Applicant, the Member was in a good position to evaluate his evidence and there is no basis to interfere with the above assessment of the Applicant. [12] The Member concluded that he was not an impressive witness and that he was confused about some issues. It is also important to remember that this case was based on a written contract and, in part, upon conversations which, it is said, varied the terms of the contract. These were not in writing. Having regard to the length of time since those conversations, it is not surprising that the Applicant would have difficulty recalling accurately what was said. [13] The Member preferred the evidence of the Respondent and his witnesses. That is a matter of assessment having heard and seen the witnesses give evidence. [14] We are not in the same position as the Member. However, when the evidence of the Respondent and his witnesses is examined, they come together as a whole to make a convincing case. [15] The written contract was signed 2 October 2005. The plans drawn up on behalf of the Applicant were lodged at the Council for approval months later. They set out additional work to be done by the Applicant. The Member concluded, correctly in our view, that the plans were not part of the contract. [16] The evidence of Stephen John White at paragraph 8 of his affidavit is as follows – “Mr Campbell organised for the post holes for the steel stumps to be dug and I observed him mark on the slab where he wanted the holes dug which were done by an excavator. Prior to doing this Mr Campbell cut holes in the slab and the excavator then dug the holes. Mr Campbell marked in chalk on the ground the position of each hole for the steel stumps.” [17] He also says at paragraph 9 – “I had a number of discussions with Mr Campbell both prior to commencing work on the demolition of the old structure and during the demolition of the old structure. Mr Campbell told me on a number of occasions that his plan for moving the house onto the block was for the truck to back up onto the slab and the house was then going to be stumped.” [18] This evidence is supported by that of Sean Ryan. In paragraph 15 of his affidavit, he states – -- 4 of 5 -- 5 “The house when it was finally placed on the block was placed on the steel stumps which were put in the holes that Mr Campbell had dug on the block. Mr Campbell supervised the placement of the home upon these stumps and the adjustment of the height of the house from the ground.” [19] The above is but a summary of some of the evidence which clearly supports the case of the Respondent, and the findings of the Member. There is ample cogent evidence to support the conclusion of the Member. [20] There is no error of law and no basis to grant leave to appeal. [21] The Application is dismissed. [22] The Respondent sought to make submissions as to costs if successful. It is appropriate to make directions in relation to the issue of costs. -- 5 of 5 --