Acclaim Property Services Pty Ltd v Russell [2011] QCATA 191

CITATION: Acclaim Property Services Pty Ltd v Russell [2011] QCATA 191 PARTIES: Acclaim Property Services Pty Ltd trading as Acumen Property Services v Ms Deanne Russell APPLICATION NUMBER: APL064-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member Peta Stilgoe, Member DELIVERED ON: 19 July 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. Appeal allowed. 3. Decision of 11 November 2010 set aside and the following decision substituted: That the respondent pay the Applicant the sum of $4,709.00 within 21 days CATCHWORDS : MINOR CIVIL DISPUTE – where termite inspection and report - where termites found shortly after inspection – where claim for rectification of termite damage – whether grounds for leave to appeal COSTS – where adjudicator awarded legal costs – whether costs award in the interests of justice – whether costs can be awarded in minor civil dispute Queensland Civil and Administrative Tribunal Act 2009 ss 100, 102(3) Queensland Civil and Administrative Rules R 83(b) -- 1 of 4 -- 2 Fox v Percy (2003) 214 CLR 118 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION Mr Oliver [1] In this matter the Appeal Tribunal consisted of Ms Stilgoe, QCAT Member and me. I have had the benefit of reading her reasons in draft. I agree with her reasons, and her conclusions, and the order she proposes. Ms Stilgoe [2] Ms Russell bought a home in Forest Lake, an area well known for termite infestation. She engaged Acumen to conduct a pre-purchase inspection, with a particular focus on termites. [3] Acumen provided a report dated 24 September 2010 in which it was noted: “No evidence of previous or current termite activity, fungal decay or activity by wood borers except as above was observed at the time of inspection. See also additional information and recommendations in the annexure hereto.” [4] As is common with termite reports, Acumen’s report was long on detail that is not very helpful and short on detail that would be of assistance to a purchaser. The report also contained six pages of closely typed and densely worded “Important Information Regarding the Scope and Limitations of the Inspection and this Report.” Although the information purported to be specific to Ms Russell’s property, it was clearly a “cut and paste” document and was of little assistance to Ms Russell. [5] Ms Russell found evidence of termites in the property on 21 October 2010, during a pre-settlement inspection. On 24 October 2010, Ms Russell found that the house had termite damage. She has since spent thousands of dollars eradicating the termites and repairing the damage. She brought an application in the minor civil disputes jurisdiction of the tribunal seeking to recover those costs from Acumen. The learned Adjudicator ordered that Acumen pay Ms Russell $6848.93. [6] Acumen has appealed the learned Adjudicator’s decision on these grounds: -- 2 of 4 -- 3 a) The learned Adjudicator’s approach and the limitations for the hearing lacked procedural fairness and natural justice. b) No reliable evidence of any shortcoming by Acumen was produced. c) The learned Adjudicator relied on incorrect assumptions as the basis for his decision in an area in which he was not expert and contrary to expert advice and evidence. d) The learned Adjudicator awarded costs even though there was no legal representative present and it was contrary to the tribunal’s legislation and rules. e) Acumen’s report did not purport to guarantee that there were no termites present or no termite damage, but only whether any damage or activity was detected. [7] Because this is an appeal from a decision of the tribunal in its minor civil dispute jurisdiction, leave is necessary. Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error? [8] The transcript shows that both Ms Russell and Mr Wilson on behalf of Acumen gave oral evidence, on oath, and both submitted documentary evidence. Within the confines of the busy minor civil disputes jurisdiction, the learned Adjudicator gave the parties ample opportunity to address each contentious issue. There is no basis for Acumen’s assertion that the hearing lacked procedural fairness or natural justice. [9] Parties in minor civil dispute hearings should not expect that their dispute will be heard by an “expert”. The task of the learned Adjudicator is to make a decision based upon all of the evidence presented to him at the time. It is the parties’ task to explain the case and present the evidence in a way that the learned Adjudicator can understand. [10] The sole duty of the appeal tribunal is to determine whether there is an error in the primary decision. It is not the task of the appeal tribunal to decide where the truth lay as between the competing versions given by the parties.1 [11] Mr Wilson pointed out the extent of Acumen’s inspection and warranty at the hearing. He also took the learned Adjudicator to the essential differences in the expert evidence. The learned Adjudicator made a specific finding that Acumen’s report inspection was unsatisfactory2 and 1 Fox v Percy (2003) 214 CLR 118 at 129 per Gleeson CJ, Gummow and Kirby JJ. 2 Transcript page 15, lines 38-44 -- 3 of 4 -- 4 that he missed the presence of old termite leads.3 Those findings were open to the learned Adjudicator on the evidence available to him and I can find no compelling reason to come to a different view. [12] Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 states that, other than as provided under this Act or an enabling Act, each party to a proceeding should bear the party’s own costs of the proceeding. The tribunal may order costs if it is in the interests of justice to do so and the factors that the tribunal can take into account when deciding whether or not to award costs are set out in s102(3). The learned Adjudicator determined that Ms Russell should be awarded her costs of the proceedings from a consideration of s102(3)(e) - the financial circumstances of the parties – because Ms Russell borrowed money to buy the house after her divorce and has a mortgage on the property. [13] With all due respect to the learned Adjudicator, a consideration of whether an award of costs is in the interests of justice requires more than identifying that one party has been divorced and has a mortgage. If that was the test, the tribunal would be making many more orders for costs than it has done to date. [14] In any event, Section 105 provides that the rules may authorise the tribunal to award costs in other circumstances and rule 83(b) of the Queensland Civil and Administrative Rules provides that any order for costs in a minor civil dispute (other than a minor debt claim) is limited to the amount of the prescribed fee paid by the applicant. There is simply no power for the learned Adjudicator to have awarded any costs other than Ms Russell’s filing fee. [15] Even if the tribunal had power to order legal costs, and it was minded to do so, an award of $2,139.93 is inappropriate. Even though there are two receipts on the file, there is only one invoice in the sum of $1,039.93. That figure represents indemnity costs; an award of standard costs, pursuant to Schedule E of the Magistrates Court Scale, would be limited to $765.00 (instructions to sue). [16] The learned Adjudicator has erred in awarding Ms Russell costs of $2,139.93. Leave to appeal should be granted and the appeal allowed. [17] The decision of 11 November 2010 should be set aside and the following order substituted: “That the respondent pay the applicant $4,709.00 within 21 days.” [18] If, as seems likely, Acumen has paid Ms Russell the amount of the learned Adjudicator’s decision on 11 November 2010, then she should refund Acumen the sum of $2,139.93 3 Transcript page 15, lines 46-49 -- 4 of 4 --