A L & J M Kirchner Pty Ltd v Emerson [2012] QCATA 155

CITATION: A L & J M Kirchner Pty Ltd v Emerson [2012] QCATA 155 PARTIES: A L & J M Kirchner Pty Ltd trading as Kirchner Excavations) (Applicant/Appellant) v Martin Emerson (Respondent) APPLICATION NUMBER: APL034-12 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson President DELIVERED ON: 31 August 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: Minor civil claim – contract to excavate and level site – whether agreement duly performed – whether claim should have been dismissed in part – whether appellable error shown – whether leave to appeal should be granted – proper limits of application for leave Queensland Civil and Administrative Tribunal Act 2009, ss 3, 20, 32, 142(3)(a)(i) Robinson v Corr [2011] QCATA 302 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Drew v Bundaberg Regional Council [2011] QCA 359 Fox v Percy (2000) 214 CLR 118 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 Jones v Dunkel (1959) 101 CLR 298 Fabre v Arenales (1992) 27 NSWLR 437 Ghazal v Government Insurance Office of NSW (1992) 29 NSWLR 336 -- 1 of 5 -- 2 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 (QCAT Act). REASONS FOR DECISION Outline of Proceedings [1] In June 2011 Mr Emerson engaged Kirchner Excavations to clear and level land at Gladstone, in preparation for erection of a house. [2] On 1 August 2011 Kirchner delivered an invoice for $2,574 (including $234 GST) itemised as follows: (1) Scrape up grass, level pad for house etc $960; (2) Travel to and from yard $210; (3) 19/7/11 Load and cart rubbish etc $960; (4) 19/7/11 Travel to and from yard $210. [3] Mr Emerson refused to pay Kirchner any of that amount, claiming that the site, and particularly the pad for the house, was not properly levelled. [4] Kirchner’s application to the Tribunal for $2,574, and filing fee of $75, was heard at Gladstone by a Magistrate sitting as a Member of the Tribunal on 12 January 2012. The learned Magistrate ordered payment of items 2-4 of the claim as invoiced and noted above, and GST attributable to those items, but declined to order payment of Item 1. In the event, Kirchner was awarded $1,518. It seeks leave to appeal that order. Requirements for Leave [5] In a case of this kind there is no appeal as of right.1 It is a prime object of the QCAT Act to resolve disputes, particularly minor ones, quickly and economically.2 Subject to justice and reason, finality of the primary decision is consonant with those aims. [6] There are well settled principles for deciding whether leave to appeal should be granted. It is not nearly enough for a party to express disappointment at the original decision, or a feeling that justice has not been done.3 It must be shown that the decision in question is affected, arguably at least, by an appellable error, resulting in a substantial injustice to the intending appellant.4 It is not such an error to prefer one version of the facts to another, or to attribute more weight to the evidence of one party or witness than another. [7] Findings of fact will not usually be disturbed on appeal if the findings of fact by the original decision maker have a rational basis of support in the evidence.5 Where reasonable minds may differ, a decision cannot properly be called erroneous or wrong simply because one conclusion has 1 QCAT Act, s 142(3)(a)(i). 2 QCAT Act, s 3(b). 3 Robinson v Corr [2011] QCATA 302 at [7]. 4 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; Drew v Bundaberg Regional Council [2011] QCA 359 at [19]. 5 Fox v Percy (2000) 214 CLR 118 at 125-126. -- 2 of 5 -- 3 been preferred to another possible view.6 One clear purpose of a “leave” proviso is to preclude attempts to conduct retrials on the merits.7 The Primary Hearing [8] There were two witnesses only. Evidence was received from Mr Kirchner and Mr Emerson in narrative form, without cross-examination, other than occasional questions from the Magistrate. [9] According to Kirchner, the rocky character of the site made it impossible to attain a perfect level.8 He says that he mentioned this difficulty to Mr Emerson’s father, in Emerson Jr’s absence. It is common ground that Mr Emerson Snr came to the site to remove rocks that Kirchner was unable or unwilling to handle. On that occasion, according to Kirchner, he told Emerson Snr that the site was not quite level, and the latter replied: “Don’t worry about that. We will cart some fill ... to level up around the house.”9 [10] Mr Emerson Jr maintains that no such conversation ever occurred. [11] Mr Emerson Snr was in the precincts of the hearing room, during the hearing. The Magistrate invited Mr Kirchner to call him. Mr Kirchner declined: “I don’t think it’s going to be any advantage.”10 [12] The learned Magistrate made no reference, in name or in substance, to the well known case of Jones v Dunkel.11 Had he had done so, and if Mr Kirchner had had legal advice, Kirchner might well have replied: “I can’t be expected to call him `blind’,12 and he’s bound to be in my opponent’s camp anyway”.13 But in the event the learned Magistrate took the view that, whether or not the disputed conversation took place, a notification to Mr Emerson Snr was not a sufficient communication to his son.14 That finding was unsurprising, and in accord with the state of the evidence before the learned Magistrate: in particular, there was no evidence of an appropriate and direct communication to Mr Emerson Jr at any material time. [13] Initially the Magistrate appeared to be critical of Mr Emerson’s failure to give Mr Kirchner a reasonable opportunity to remedy the defect in question.15 Presumably the learned Magistrate, at that stage, had in mind the principle that a plaintiff must take all reasonable steps to mitigate the loss or damage of which he complains.16 However, it appears that the Magistrate eventually accepted Mr Emerson’s evidence that he was not 6 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at [131]. 7 Contrast QCAT Act, s 20 (review jurisdiction). 8 Transcript (T) page 6: Kirchner: “The ... rock is such that if you rip it up it comes out in ... 300 millimetre chunks.” 9 T page 3. 10 T page 8. 11 (1959) 101 CLR 298. 12 Fabre v Arenales (1992) 27 NSWLR 437 at 450, 451. 13 Ghazal v Government Insurance Office of NSW (1992) 29 NSWLR 336 at 343. 14 T page 11. 15 T pages 5, 7 and 10. 16 Lindgren et al Contract Law in Australia I1986 paras [2133] and [2135]; McGregor on Damages 14th edn paras [209], [213]. -- 3 of 5 -- 4 aware of the defect until the concrete foundations of the house were in place17, by which time Kirchner could not amend his error. [14] The learned Magistrate’s somewhat Delphic conclusion was that “there appears to be a lack of communication ... Emerson should have given Mr Kirchner an opportunity to rectify ... and Kirchner should have contacted Emerson and not relied on anything his father said.” Nevertheless “Kirchner has not fully complied with the job he was asked to do. I don’t believe that [he] ... is entitled to the full amount ... he’s claiming.”18 Accordingly the Magistrate awarded $1,518, as noted in paragraph [4] above. The Applicant’s Submissions [15] Mr Kirchner says, in his submissions to the Appeal Tribunal, that when he first met Mr Emerson he told him that, considering the rocky nature of the ground, he might not be able to do a perfect job. This was not in evidence at the hearing, nor does it appear in the handwritten material in Part C of the original Application filed on 21 September 2011. [16] Mr Kirchner repeats the claim that he told Mr Emerson Snr that the site was not quite level, and that the latter told him “not to worry”. He also makes a new assertion, that machines brought on to the block by some third person “would have disturbed my levels somewhat”. [17] Mr Kirchner further says: “if I had been contacted by Mr Emerson, I would have attended to his concerns immediately at no extra charge to him”. However, at the hearing, he stated: “[W]hether it was Mr Emerson, myself or the builder, someone had to build that block up ... Now, if he’d phoned me, I would have worked out a quote ... [It] would require 60.69 metres of fill ... delivered on site ... and some travelling would cost Mr Emerson $4,767. Had he of got [sic] the message and said `Hey, that’s not good enough; we’ve got to level it’ that’s what his cost would have been from me. Now, the builder has done the same thing basically and charged [him] $3,600 or whatever it was, so I don’t really think that [he] has been disadvantaged because ... somebody had to level that site.”19 [18] Mr Kirchner maintains that he should be awarded the full amount of his claim. The Respondent’s Submissions [19] Mr Emerson repeats, in his submissions, his assertions that his first knowledge of the defect was after building work began, and that Mr Kirchner gave no prior warning to Mr Emerson Snr. He points out that Mr Kirchner made no earlier suggestion that his work was disturbed by other machines introduced on to the site. Consideration [20] The application for leave to appeal does not point to any legal or appellable error in the learned Magistrate’s decision. It merely repeats 17 T page 10. 18 T page 11. 19 T page 6. -- 4 of 5 -- 5 factual contentions that the Magistrate, as the judge of fact, rejected and was entitled to reject, and it attempts, illegitimately, to introduce material that was not before the primary decision maker. Essentially the appeal is an expression of dissatisfaction, and an invitation to the Appeal Tribunal to conduct a re-trial on the merits, which the law does not allow. [21] Clearly none of the requirements for a grant of leave to appeal, as summarised in paragraphs [5]-[7] above, are met in this case. Leave to appeal must be refused. -- 5 of 5 --