Carpet One Floor and Home v Elite Building Group [2013] QCATA 298

CITATION: Carpet One Floor and Home v Elite Building Group [2013] QCATA 298 PARTIES: Renara Pty Ltd t/as Carpet One Floor and Home (Applicant) v Polidano Nominees Pty Ltd t/as Elite Building Group (Respondent) APPLICATION NUMBER: APL341-13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Thomas, President DELIVERED ON: 22 October 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE - whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Cachia v Grech [2009] NSWCA 232 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 -- 1 of 4 -- 2 APPEARANCES and REPRESENTATION (if any): The Appeal Tribunal heard and determined this matter on the papers in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] Polidano Nominees Pty Ltd, t/as Elite Building Group, engaged Renara Pty Ltd, t/as Carpet One Floor and Home, to lay vinyl flooring at the Cairns International Airport. The vinyl bubbled and lifted. Carpet One tried to fix the problem but was unsuccessful. Elite filed a claim for the cost of a third party fixing the vinyl. A Magistrate, sitting as an ordinary member of the Tribunal, ordered Carpet One pay Elite the rectification cost plus filing fees. [2] Carpet One wants to appeal that decision. It says that it has a number of independent flooring experts who will provide evidence that conflicts with the evidence before the learned Magistrate. It wants to contest the expert evidence of Ellery & Associates. [3] Carpet One has filed a statement from Alan Truelove in support of the application for leave to appeal. The Appeal Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined1. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Carpet One 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?2 [4] This dispute went to mediation twice. A hearing in May was adjourned because, in the words of the learned Magistrate, there was „no proper material to decide [the] matter‟. The learned Magistrate explained what was required. Unfortunately, and the Appeal Tribunal does not know why, Carpet One did not attend that hearing so it did not have the benefit of the learned Magistrate‟s explanation. Carpet One has not explained why it did not engage Mr Truelove before the hearing in July. [5] Mr Truelove‟s statement has some further difficulties. He conducted the inspection after the hearing, so he does not speak to the condition of the vinyl at the time of the hearing. He makes a statement about the condition of the subfloor but he did not conduct any tests of the subfloor. His opinion is heavily qualified: „Not knowing…makes it difficult for me to definitely state this‟. Elite submits that Mr Truelove has no relevant qualifications that would elevate his evidence to the status of expert evidence. 1 QCAT Act ss 137 and 138. 2 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408. -- 2 of 4 -- 3 [6] An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party‟s case at the initial hearing. Mr Truelove‟s statement should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Magistrate. [7] Because this is an appeal from a decision of the Tribunal in its minor civil disputes jurisdiction, leave is necessary. 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?3 Is there a reasonable prospect that the applicant will obtain substantive relief?4 Is leave necessary to correct a substantial injustice caused by some error?5 Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?6 [8] The Appeal Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.7 An appellate Tribunal may interfere if the conclusion is „contrary to compelling inferences‟ in the case.8 However, the Appeal Tribunal must exercise its own discretion when considering whether the original decision maker was in error. As the High Court said in Fox v Percy: In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.9 [9] The parties agreed that Carpet One inspected the job before quoting it. The parties agreed that the vinyl installation was not performing as it should. The parties agreed that Carpet One was given the opportunity to rectify the problem but, after a third unsuccessful attempt, it did not respond to Elite‟s requests. [10] Carpet One argued a number of possibilities for the defective vinyl but had no evidence to support its arguments. Elite had reports, statements and documents. The learned Magistrate was entitled to rely on the evidence of Ellery & Associates, even though there was a suggestion that the installer had a different view. The evidence supports the learned Magistrate‟s findings and there is nothing in the transcript to persuade me that he should have taken a different view. 3 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 4 Cachia v Grech [2009] NSWCA 232 at 2. 5 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 6 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. 7 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. 8 Chambers v Jobling (1986) 7 NSWLR 1 at 10. 9 Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ. -- 3 of 4 -- 4 [11] There is no question of general importance that should be determined by the appeals tribunal. There is no reasonably arguable case that the learned Adjudicator was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused. -- 4 of 4 --