Darkon Industries Pty Ltd v Green [2013] QCATA 94

CITATION: Darkon Industries Pty Ltd v Wayne Green [2013] QCATA 94 PARTIES: Darkon Industries Pty Ltd t/as Platimum Bricklaying Blocklaying and Concrete Solutions (Appellant) v Wayne Green t/as Wayne Green Constructions (Respondent) APPLICATION NUMBER: APL175-12 MATTER TYPE: Appeals HEARING DATE: 20 March 2013 HEARD AT: Brisbane DECISION OF: Dr J R Forbes, Member DELIVERED ON: 26 March 2013 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal is refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – BUILDING MATTER – where claim for extra work and materials – whether oral agreement made – agreement found – whether finding open on evidence – whether leave to appeal should be granted – no error shown – leave refused Queensland Civil and Administrative Tribunal Act 2009 ss 3, 142 Robinson v Corr [2011] QCATA 302, cited Fox v Percy (2003) 214 CLR 118, cited Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611, cited In Re W (an infant) [1971] AC 682, cited Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, cited -- 1 of 4 -- 2 APPEARANCES and REPRESENTATION (if any): APPELLANT: Darkon Industries Pty Ltd t/as Platimum Bricklaying Blocklaying and Concrete Solutions represented by Mr Jed Sladden RESPONDENT: Wayne Green t/as Wayne Green Constructions represented by Mr Wayne Green REASONS FOR DECISION [1] Once again one sympathises with parties without legal representation who, quite understandably, do not appreciate the rules confining applications for leave to appeal. [2] On 16 May 2012 Darkon Industries Pty Ltd (Darkon) was ordered to pay the respondent Wayne Green (Green) $5,840.60 and a filing fee of $92. [3] The Adjudicator found that the amount of $5,840.60 was due and owing and unpaid by Darkon to Green, a concreter, under an oral agreement, for “extras” performed on a residential building site at Hawthorne, Brisbane. [4] Green testified that the foundations of the building were defective, and that Jed Sladden, for Darkon, “agreed in full to everything I had to do to fix the job and make it right”.1 Darkon denies any such agreement. Neither the quality of Green’s work, nor the quantum of his claim, is in dispute. [5] The Adjudicator found that the evidence of Green was given “in a forthright manner” and was “convincing”, and concluded that “there was an oral agreement that [Darkon] would be responsible for the extras”.2 He found support for Green’s evidence in an email from Darkon, dated 19 May 2010, requesting a “separate [quote] for extras” to enable Darkon to “process payment”.3 As the subject work was completed by 17 May (or at the latest 18 May 2010)4 the requested document would more properly be described as an invoice or account. [6] The email just mentioned was sent by Toni Sladden, wife of Darkon’s principal, and it is possible that she was then unaware that a disputed agreement was involved. [7] However, the Adjudicator found further support for Green in statutory declarations by Tony Pekos and Michael Pekos5, builders of the subject residence, who employed Darkon as sub-contractor; Darkon, in turn, engaged Green. [8] According to Tony Pekos: 1 Transcript of hearing 16 May 2012 (“Transcript”) page 5. 2 Transcript page 45. 3 Transcript page 42. 4 Transcript page 41. 5 Exhibits 6 and 7 respectively, Transcript page 43. -- 2 of 4 -- 3 When Wayne Green was on site forming the slab to pour concrete he noticed the levels were incorrect and the slab would require considerably extra concrete to bring it up to level ... When I discussed this with Jed [Sladden of Darkon] he said that he had spoken to Wayne [Green] and Wayne would fix anything that needed fixing ... and that Jed would pay for any extra cost himself. [9] Michael Pekos gave similar evidence: On the day before the concrete pour Wayne Green was on site and notified me ... that it would require additional materials and works to rectify the situation. Wayne asked me to call Jed [Sladden] and clarify what was happening regarding the extras that were required which I did. Jed [Sladden] told me to “get Wayne to sort it out and I will fix him up for it”. Jed then asked to speak to Wayne to confirm this ... and at all times [Jed] maintained that he would pay for this himself. [10] Sladden (for Darkon) sought to discredit the Pekos’ explicit evidence as biased by recent disagreements between Sladden and those witnesses, concerning other building projects. But while Sladden bluntly dismissed their sworn evidence as “lies”6, he did not seek to cross-examine them, or to give them an opportunity to deal with his (Sladden’s) imputation of bias. [11] The Adjudicator clearly rejected Sladden’s attack on the credit of Tony and Michael Pekos.7 [12] Accordingly, Darkon faces the difficulty that the Adjudicator, as the judge of fact and credit, accepted the evidence of Green, Tony Pekos and Michael Pekos, rejected the conflicting evidence of Sladden, and found that Darkon made an oral contract to pay Green for the disputed extras. Should leave to appeal be granted? [13] We come then, to the question whether leave to appeal should be granted. Once again one sympathises with the perfectly understandable difficulty that unrepresented parties experience in appreciating the nature and legal limitations of an application for leave to challenge a judgment of the Tribunal in a Minor Civil Dispute. It is not nearly enough for an appellant to express disappointment at the original decision, or a subjective feeling of injustice.8 Commonly an unrepresented party assumes that an appeal is an opportunity to re-run the trial, revisiting arguments already rejected, or leading evidence that might have been offered at the trial, but was not. There may be a hope or expectation that the appeals Tribunal will simply “second guess” the primary decision- maker and substitute a more favourable opinion of its own. Such expectations are sadly misconceived. [14] It is not a good ground of appeal that the trial judge chose one version of the facts to another, or preferred the credit of witness “A” to that of witness “B”. Findings of fact are not disturbed if they have reasonable support in the evidence.9 Where reasonable minds may differ, a decision is not 6 Transcript page 44. 7 Transcript page 45. 8 Robinson v Corr [2011] QCATA 302 at [7]. 9 Fox v Percy (2003) 214 CLR 118 at 125-126. -- 3 of 4 -- 4 erroneous merely because one conclusion has been preferred to another possible view.10 [15] A party dissatisfied with the decision in a Minor Civil Dispute must first obtain leave to appeal; there is no automatic right of appeal in cases of that kind. It is a policy of the QCAT Act that first-instance decisions in such cases should normally be final.11 [16] The first step is to show, if possible, that the primary decision arguably contains an error of law or fact that caused a miscarriage of justice – in other words, an error that probably made a significant difference to the result. The onus is on the person appealing to specify the alleged error or errors. It is not sufficient to make a general assertion that the decision should be set aside. If the appellant succeeds at this stage, he must then persuade the appeals Tribunal that the allegation of error is not merely arguable, but ultimately acceptable. [17] In this case no appellable error has been specified, and none is apparent. The question was simply this: Did the parties orally agree that Darkon would pay Green a fair price for the specified additional work and materials? On the evidence of Green and Tony and Michael Pekos, the Adjudicator answered “Yes”. There was no issue about the quality of the extra work, or the amount charged for it. [18] The decision was one of fact and credit, for the Adjudicator to decide. On the evidence, the decision is one that he, as the judge of fact, was quite entitled to make. No proper ground of appeal has been established, and leave to appeal must be refused. ORDER Leave to appeal is refused. 10 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at [131]; In Re W (an infant) [1971] AC 682 at 700 per Lord Hailsham; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025. 11 QCAT Act ss 3(b), 142(3)(b). -- 4 of 4 --