Avis v Claudia Tiller Holdings [2011] QCATA 148

CITATION: Avis v Claudia Tiller Holdings [2011] QCATA 148 PARTIES: Mr David Avis v Claudia Tiller Holdings trading as Luxury Gold Coast Pools APPLICATION NUMBER: APL026-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member Peta Stilgoe, Member DELIVERED ON: 21 June 2011 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal refused. CATCHWORDS : MINOR CIVIL DISPUTE – where contract to construct pool terminated before completion – where pool contractor sought recovery of costs to date – where owner alleged pool not built in accordance with the contact – whether grounds for leave to appeal INTEREST – where contract provided for interest at 15% – where delay in recovery action – whether adjudicator‟s award at 10% reasonable COSTS – where pool contractor claimed costs of preparing for appeal – whether grounds for awarding costs Queensland Civil and Administrative Tribunal Act 2009, ss 100, 142(3) Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Chambers v Jobling (1986) 7 NSWLR 1 at 10 Jalmoon Pty Ltd (in liquidation) v Bow [1997] -- 1 of 5 -- 2 QCA 271 APPEARANCES and REPRESENTATION (if any): This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009. 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] Mr Avis engaged Luxury Gold Coast Pools to build a pool. The contract between the parties, dated 29 December 2006, includes a sketch plan of a pool showing a “beach” and a seat. Luxury completed construction of the pool up to and including Stage 3 – completion of the concrete shell. On the day that the concrete shell was sprayed, Mr Avis expressed concern that the design did not include a ramp entry to the pool via the beach. By letter of 30 March 2007, Mr Avis gave notice of a breach of contract in that regard, requiring rectification within 10 business days. Luxury did not rectify the alleged breach and Mr Avis terminated the contract. [3] On 18 March 2007, Luxury issued an invoice for Stage 3 in the amount of $7,977. Mr Avis did not pay that invoice so on 16 April 2010 Luxury issued proceedings in the minor civil dispute jurisdiction claiming the amount due plus costs and interest. Luxury was wholly successful although interest was calculated at 10% rather than 15% as provided for in the contract. [4] Mr Avis has appealed the learned Adjudicator‟s decision on the grounds that the learned Adjudicator erred at law by: a) Failing to find that Luxury had breached the contract. b) Failing to find that the pool had not been built in accordance with the contract. c) Giving unreasonable weight to the fact that Mr Avis was a marine engineer and failing to give sufficient weight to the fact that Luxury is an expert in pool construction. d) Determining that Mr Avis bore the onus to ensure that the ramp that he says should have been included could have been accommodated. -- 2 of 5 -- 3 e) Determining that Mr Avis failed to provide Luxury with a sufficiently reasonable opportunity to attempt rectification or completion. f) Determining that Luxury constructed the pool in a practical way that was sufficiently consistent with the contract. g) Failing to consider adequately the costs to Mr Avis in having the pool completed. [5] Because this is an appeal from a decision of the tribunal in its minor civil dispute jurisdiction, leave is necessary: s 142(3) of the Queensland Civil and Administrative Tribunal Act 2009. Therefore, it is not necessary to determine whether the learned Adjudicator‟s error, if there is one, is an error of law or fact. [6] 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? [7] Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.1 [8] An appellate tribunal may interfere, however, if the conclusion at first instance is „contrary to compelling inferences‟ in the case.2 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.3 [9] The assertions that the learned Adjudicator failed to find that Luxury breached the contract and failing to find that the pool had not been built according to the contract are really the same allegation put in slightly different ways. Mr Avis‟ complaint is that the pool should have included a ramp entrance, the skimmer box was in the wrong location and that the pool was smaller than the parties agreed. [10] I have examined the documents that were available to the learned Adjudicator at the hearing and read the transcript. The learned 1 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. 2 Chambers v Jobling (1986) 7 NSWLR 1 at 10. 3 Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ. -- 3 of 5 -- 4 Adjudicator found that the contract did not identify the inclusion of a ramp4. The learned Adjudicator also referred to the document signed by Mr Avis on 16 February 2007 (in which he confirmed that he agreed with the shape, size and dimensions of the pool) and found that the pool was constructed substantially in accordance with the contract5. The learned Adjudicator‟s finding in that regard can be supported by the evidence and I respectfully agree with those findings. There is no compelling reason to come to a different conclusion. [11] Although the learned Adjudicator‟s reasons for decision refer to the fact that Mr Avis is an engineer6, it is not apparent from the decision that the learned Adjudicator placed any weight on that fact. The learned Adjudicator did make the point that Mr Avis should have been more vigilant to ensure that the ramp could be accommodated but, as the learned Adjudicator had already found that the contract did not include the provision of a ramp, Mr Avis‟ actions from that point are not really relevant. [12] The learned Adjudicator‟s finding that Mr Avis did not give Luxury a reasonable opportunity to rectify the problem is, in light of the evidence, not necessary for the determination of the dispute. The transcript shows7 that Mr Avis‟ total cost to construct the pool was $20,000, approximately the same amount as the contract price from Luxury. That means that, even if Luxury had breached the contract, the cost of finishing the pool was no different from the costs Mr Avis incurred so Mr Avis suffered no loss. Of course, it would be a different matter if the learned Adjudicator had found that the contract with Luxury required the installation of a ramp. [13] Clause 10.2 of the contract provided that on practical completion, the works must be +5% or -1.5% of the agreed length and within +10% or - 2.5% of the agreed width. The original contract specifications called for a pool 3 metres wide. By variation dated 16 February 2007, the width was varied to 4 metres. The contract allowed for a variation to the width of between 4.4 metres and 3.9 metres. Mr Scott, on behalf of Luxury conceded in evidence that the maximum width achieved was 3.85 metres8 but says that the discrepancy is covered by Mr Avis‟ written acknowledgement that the pool set out was correct. Mr Scott also gave evidence9 that he discussed the location of the skimmer box with Mr Avis and it was agreed. The learned Adjudicator accepted that evidence and I can see no reason to come to a different conclusion. That being so, the learned Adjudicator‟s finding that the pool was built substantially in accordance with the contract is open to him on the evidence and I can find no reason to overturn that conclusion. 4 Reasons for decision, paragraph 8 5 Reasons for decision, paragraph 17. 6 Reasons for decision, paragraph 6. 7 Transcript page 7. 8 Transcript page 18. 9 Transcript page 12. -- 4 of 5 -- 5 [14] I have already commented on the learned Adjudicator‟s findings about the cost of completing the pool. Mr Avis addressed the learned Adjudicator on the costs of the additional pumping equipment but it appears that the learned Adjudicator was not persuaded to find in his favour. There is nothing in the transcript or the material to indicate that the learned Adjudicator‟s decision in that regard amounted to an error that should be corrected on appeal. [15] There is no reasonable case of error in the learned Adjudicator‟s decision; there is no reasonable prospect that Mr Avis will be granted substantive relief on appeal; leave is not necessary to correct a substantial injustice and there is no question of general importance for which the public requires a decision of the appeals tribunal. Leave to appeal should be refused. [16] In its submissions in response to this application, Luxury has sought payment of interest for the full period the money has been outstanding at the rate of 15% plus its costs of preparing a response to the application. [17] On the question of interest, as the learned Adjudicator noted,10 Luxury has not explained why it failed to take recovery action until 2010 when it is evident that it could have taken action earlier. It is common for an award of interest to be discounted because of an applicant‟s failure to take proper action11. Although I cannot see the precise reasoning for the learned Adjudicator‟s award of one year‟s interest at 10%, I see no reason to substitute another calculation. [18] Section 100 of the QCAT Act provides that, generally, each party should bear that party‟s own costs of any proceeding in the tribunal. The factors that the tribunal will take into account in determining whether costs should be awarded are set out in s 100(3). Luxury has not addressed the tribunal as to the matters in s 100(3) and I can see no reason why it should be awarded costs. 10 Reasons for decision, paragraph 18. 11 See, for example, the Court of Appeal in Jalmoon Pty Ltd (in liquidation) v Bow [1997] QCA 271. -- 5 of 5 --