Aramac Developments Pty Ltd v Approved Carpentry Pty Ltd [2011] QCATA 297

CITATION: Aramac Developments Pty Ltd v Approved Carpentry Pty Ltd [2011] QCATA 297 PARTIES: Aramac Developments Pty Ltd t/as Aramac Developments (Applicant/Appellant) v Approved Carpentry Pty Ltd t/as Approved Carpentry (Respondent) APPLICATION NUMBER: APL274-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member DELIVERED ON: 2 November 2011 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal is refused. CATCHWORDS: Minor Civil Dispute – creditability – where Tribunal preferred the evidence of the respondent – where no error found Queensland Civil and Administrative Tribunal Act 2009, s 142(3) 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 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). -- 1 of 4 -- 2 REASONS FOR DECISION [1] In late September or early October Mr Cummings and Mr Miller, both of Aramac Developments, met with Jason Kowalonek of Approved Carpentry to discuss the respondent providing carpentry services to Aramac to complete building work, commenced by a building company Dirod Pty Ltd. [2] At the first meeting, which occurred at a coffee shop at Loganholme, there was general discussion about what work would be necessary on the project which included framing and carpentry work. Subsequent to that meeting, all three met on site at the projects where, it was agreed that Mr Kowalonek‟s company would undertake the carpentry work at a price of $45.00 per hour plus GST. [3] On completion of the work Mr Kowalonek issued an invoice to Aramac Developments in the sum of $7,276.50. The invoice included the carpentry work initially agreed, and further work for the fixing of cladding which was additional work agreed to while they were on the job. [4] On receipt of that invoice, Aramac wrote to Mr Kowalonek requesting that the invoice be split to charge Aramac for the cladding work $3,168.00, and Dirod Pty Ltd $4,108.50. Mr Kowalonek obliged the applicant by doing that but the latter invoice was never paid. [5] As a consequence, Mr Kowalonek commenced a proceeding in the minor civil disputes jurisdiction of the Tribunal claiming the outstanding amount from Aramac Developments. The application came on for hearing before a Tribunal Adjudicator on 16 June 2011 and after that hearing, the Tribunal ordered that Aramac pay to Approved Carpentry $4,108.50. [6] From that decision Aramac Developments has sought the Tribunal‟s leave to appeal by filing an application in the Appeal Tribunal on 9 August 2011. In the grounds of appeal there is an allegation of bias (perceived), failure to address the duly executed agreement between the parties, failure to pursue relevant issues and failure to take into account evidence lead before the learned Adjudicator. [7] Leave to appeal is necessary as this is an appeal from a decision in the minor civil disputes jurisdiction.1 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?2 Is there a reasonable prospect that the applicant will obtain substantive relief?3 Is leave necessary to correct a substantial injustice to the applicant caused by some error?4 Is there a question of general 1 QCAT Act section 142(3). 2 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 3 Cachia v Grech [2009] NSWCA 232 at 2. 4 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. -- 2 of 4 -- 3 importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?5 [8] In support of the application for leave to appeal Aramac has produced fresh evidence which includes a statutory declaration by Allen Miller, and a copy of an agreement made between Aramac Developments Pty Ltd and Dirod Homes Pty Ltd which is in the nature of a construction management agreement. The recital in the agreement indicates that Dirod wants to retain Aramac Developments as the site supervisor for its projects. The agreement also states that all invoices will be paid by Dirod as may be directed by Aramac. The production of this agreement begs the question as to why Aramac have not sought reimbursement from Dirod or directed Dirod to pay the money to the respondent. [9] In any event, that evidence was not before the learned Adjudicator and adds little to the issues that were before him. [10] Essentially what the learned Adjudicator had to decide is whether the contract for the carpentry work was between the applicant and the respondent, or alternatively whether it was between the respondent and the applicant as duly authorised agent of Dirod Homes Pty Ltd. [11] The applicant‟s case is that at the initial meeting Mr Kowalonek was told that they were acting as project managers for Dirod or more particularly, that they had “taken over construction management of a Gold Coast construction company”.6 It is unclear whether Dirod Pty Ltd was actually mentioned in the conversations. In any event, as there was no documentation produced to give clarity as to what the precise terms of the agreement were, the learned Adjudicator had to make an assessment of the evidence put before him and make a decision as to whether he accepted the evidence of Mr Kowalonek in preference to the evidence of Mr Cummings and Mr Miller. In lengthy reasons, the learned Adjudicator concluded that in the absence of any documentation proving the agreement, he essentially preferred the evidence of Mr Kowalonek. Not only was the learned Adjudicator, having heard the parties in the hearing room, entitled to come to that decision, there is also evidence to support such a conclusion. The mere fact that Mr Kowalonek initially invoiced all of the work to the applicant, as soon as the jobs were finished, on 12 October 2010 gives some support for that finding. [12] Secondly, when one has regard to the email from “Allan” to “Jason” on receipt of the original invoice, there is no protest that Mr Kowalonek had invoiced the wrong party. The email is simply a request that he resend the invoice in two parts, one to Dirod Pty Ltd and one to Aramac. In fact, the invoice to Dirod Pty Ltd has included in it a description of the work undertaken. 5 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. 6 Transcript page 19 line 30. -- 3 of 4 -- 4 [13] One could reasonably expect that if there was a mistake made by Mr Kowalonek, or he misconstrued the agreement, that would have been mentioned in the body of the email. Although this is not conclusive, it certainly assists in making a decision on the credibility issue. It is now clear that the request for payment was made in accordance with the agreement entered into between Aramac and Dirod. However that does not mean to say that Mr Kowalonek was aware or was made aware of that agreement. [14] There is no evidence put before this Appeal Tribunal to establish that the learned Adjudicator should have come to a different conclusion. An appellate tribunal may interfere if the conclusion at first instance is „contrary to compelling inferences‟ in the case,7 however that is not the case here. [15] There is no suggestion in the transcript of evidence that the applicant sought to put further evidence before the Tribunal or that it was rejected. There is no evidence that the learned Adjudicator was biased to one party or the other. Obviously the applicant is aggrieved by reason of the findings in the hearing but an adverse decision is not evidence of bias. Both parties agreed that the agreement between them was not documented therefore it was left to the learned Adjudicator to make a finding having regard to all of the circumstances of the case. [16] Having read the transcript of evidence, it does seem that the learned Adjudicator considered all of the evidence that was before him and came to a conclusion based on that evidence. It is not for this Tribunal to substitute its own view on the evidence unless there is some demonstrable error which here there is not. [17] The applicant has been unable to identify any error on the part of the learned Adjudicator and as a consequence leave to appeal must be refused. 7 Chambers v Jobling (1986) 7 NSWLR 1 at 10. -- 4 of 4 --