Deep Water Enterprises (Aust) Pty Ltd v Wucon Pty Ltd [2011] QCATA 113

CITATION: Deep Water Enterprises (Aust) Pty Ltd v Wucon Pty Ltd [2011] QCATA 113 PARTIES: Deep Water Enterprises (Aust) Pty Ltd t/a Realty Electrics v Wucon Pty Ltd APPLICATION NUMBER: APL231-10 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Kerrie O’Callaghan, Senior Member Peta Stilgoe, Member DELIVERED ON: 20 May 2011 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal refused. CATCHWORDS: MINOR CIVIL DISPUTE – where dispute between builder and contractor – where builder withheld payment – where contractor refused to attend to maintenance issues until paid – where contract documents not before the tribunal Queensland Civil and Administrative Tribunal Act 2009 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 Ms O’Callaghan [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. -- 1 of 3 -- 2 Ms Stilgoe [2] Wucon Pty Ltd is a building company. It engaged Realty Electrics to undertake work on a project in Margate. Unfortunately, the nature of that relationship was not reduced to writing. [3] Realty completed most of the work and some variations but it did not wire some shops that were included in the development. In December 2008, it sent Wucon a tax invoice for $16,500. The invoice shows no charge for the shop work but includes variations of about $5,280. Realty says that the invoice was sent at, or shortly after, the project reached practical completion. [4] Wucon paid Realty $6,000 on 22 January 2009. There is agreement that Wucon did not pay Realty the balance until late in 2009, after Realty took Court action against Wucon. The parties do not agree, however, on the reason why Wucon did not pay the full amount of the invoice and this is at the crux of the dispute: Wucon brought an application in the tribunal for the cost of completing the shop work and the cost of attending to rectification of work done by Realty that, it says, were “on maintenance”. [5] The learned Adjudicator accepted Wucon’s claim only in respect of the rectification work and ordered Realty to pay Wucon $1,750. Realty has applied for leave to appeal this decision. Realty says that the learned Member erred because: a. It had no obligation to attend to maintenance work unless and until its invoices were paid in full. b. There is no evidence that the costs were as a result of maintenance matters, given the length of time that had passed since it completed the work and the possibility of interference in the meantime. [6] Because this is an appeal from the tribunal’s minor civil dispute jurisdiction, leave is necessary. 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?1 Is there a reasonable prospect that the applicant will obtain substantive relief?2 Is leave necessary to correct a substantial injustice to the applicant caused by some error?3 Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?4 [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 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 2 Cachia v Grech [2009] NSWCA 232 at [13]. 3 QUYD Pty Ltd v Marvass Pty Ltd (supra). 4 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. -- 2 of 3 -- 3 capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.5 [8] The invoice of 15 December 2008 does not reveal any terms of trade; although, to be fair, Wucon has not produced any document that demonstrates Realty was obliged to be “on maintenance” as it suggested at the hearing. However, I am satisfied that, under difficult conditions, the learned Adjudicator came to a decision that could be supported by the facts presented at the hearing. Realty accepted that: a) In normal circumstances, it should have (or would have) returned to attend to defects.6 b) Wucon had to pay another contractor to attend to the defects.7 [9] With the lamentable lack of evidence provided by the parties at the hearing, and no additional submissions to assist me in determination of the question of leave, I am unable to say that Realty has an arguable case on appeal. [10] I note from the submissions that Mr Walsh, principal of Realty has gone into bankruptcy. He submits that Wucon’s failure to pay his invoice was a factor in that bankruptcy and there is a public interest in the “Queensland government court system” not encouraging this practice. As the learned Adjudicator pointed out, however, the government is also concerned that contractors meet their obligations to ensure parties enter into written agreements and obtained signed written variations. Realty did neither of these things. It cannot call for protection from the government when it has not, itself, met the minimum standards required of it to protect others. In the circumstances, the issue are not so important that it requires the decision of an appellate tribunal. [11] Noting Mr Walsh’s bankruptcy, I have taken the precaution of ascertaining the status of Realty to determine whether it is capable of sustaining this proceeding. As at the date of this decision, it is still incorporated and not subject to any adverse proceedings (winding up or de-registration). [12] Leave to appeal is refused. 5 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 197 ALR 201 at 207, 208. 6 Transcript page 23, line 36. 7 Transcript page 24, line 23. -- 3 of 3 --