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  • Unreported Judgment

RKC Poles Pty Ltd v Pearson and Sellwood Pty Ltd

 

[2020] QCATA 39

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

RKC Poles Pty Ltd v Pearson and Sellwood Pty Ltd [2020] QCATA 39

PARTIES:

rkc poles pty ltd 

 

(Applicant)

 

v

 

pearson and sellwood pty ltd

 

(Respondent)

APPLICATION NO:

APL090-19

ORIGINATING APPLICATION NO:

MCD060344 of 2018 Brisbane

MATTER TYPE:

Appeals

DELIVERED ON:

31 March 2020

HEARING DATE:

26 March 2020

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes,  Member

ORDERS:

The application for leave to appeal is refused.

CATCHWORDS:

APPEAL – APPLICATION FOR LEAVE TO APPEAL –  electrical engineering contract – subcontract between Applicant and Respondent – whether subcontractor satisfactorily completed work assigned – whether subcontractor bound to provide other party to subcontract with test reports – whether subcontractor liable to indemnify other party for cost of employing third party to prepare such reports – where Applicant specifies no legal error – where nature and limitations of applications for leave explained – where no legal error established – where leave to appeal refused

Queensland Civil and Administrative Tribunal Act 2009 (Qld) sections 32, 48, 100, 102, 143

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

Fox v Percy (2003) 214 CLR 118

JFM v QFG and KG [1998] QCA 228

Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 61

Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412

The Pot Man Pty Ltd v Reaoch [2011] QCATA 318

W (an infant), In re [1971] AC 682

APPEARANCES &

REPRESENTATION:

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 

  1. [1]
    The Applicant RKC Poles Pty Ltd (`RKC”) is a company which specialises in sports field lighting, and the Respondent Pearson and Sellwood Pty Ltd (`P & S’) is an electrical services contractor.
  2. [2]
    In or about February 2016 RKC agreed with the Ipswich City Council (`ICC’) to install or upgrade lighting on several sports fields in the Council’s area.
  3. [3]
    RKC engaged electricians P & S as subcontractors, to be paid at an hourly rate. After an amicable period of performance and payments, friction developed between the parties over P & S’s provision (or rather non-provision) of `test reports’.

Test report issues

  1. [4]
    Under the head contract RKC was obliged to furnish test reports as well as compliance certificates to the ICC. P & S provided RKC with compliance certificates but declined to produce test reports. Thus, in order to comply with the head contract, RKC was obliged to employ an independent electrician to generate test reports. It is not disputed that this exercise cost RKC the sum of $8,675.
  2. [5]
    P & S says that, amid the test reports contretemps, it issued several periodic invoices to RKC which the latter has failed to pay. 

Claim and counterclaim

  1. [6]
    On 3 November 2017 P & S commenced these proceedings again RKC, claiming $15,783.10 (including interest, filing fee and service fees.
  2. [7]
    RKC responded with a counterclaim for $24,923.10. That amount was said to be due inter alia for defective workmanship, and overstaffing, legal costs and the expense of obtaining independent test reports.
  3. [8]
    In the event, the Tribunal award P & S $7409.21 and dismissed RKC’s counterclaim.

Grounds of RKC appeal

  1. [9]
    RKC seeks leave to appeal[1] on these grounds:
    1. (i)
      The amount of the sum of money that has been granted is incorrect;
    2. (ii)
      No allowance for the counterclaim has been included in the decision;
    3. (iii)
      The workmanship was substandard;
    4. (iv)
      Failed to discharge legal obligations [sic];
    5. (v)
      Unable to attend hearing due to medical grounds and will suffer a substantial injustice; and
    6. (vi)
      Trading name and ABN does not match entry.
  2. [10]
    The orders sought are tersely expressed:
    1. (i)
      Stay of decision in claim 60334/17; and
    2. (ii)
      Leave to appeal decision dated 19 March 2019.

P & S entitlements calculated

  1. [11]
    On the basis of compliance certificates that P & S supplied to RKC[2] the Adjudicator accepted that the work undertaken by P & S was satisfactorily completed.[3] He then dealt with the disputed P & S invoices seriatim. From the P & S perspective the result of that inquiry was not an unqualified succcss.
  2. [12]
    Invoice 383652: The claim for $396 was allowed in full.[4]
  3. [13]
    Invoice 383653: RKC objected to the involvement of an apprentice. The point was upheld, and the claim for $462 was reduced to $267.30.[5]
  4. [14]
    Invoice 383654: The unnecessary attendance of an apprentice was disallowed; a claim for $1,344 was reduced to $684.75.[6]
  5. [15]
    Invoice 383655: For the same reason a claim for $266.75 was limited to $151.25.[7]
  6. [16]
    Invoices 385150, 385348, 387536, 387537, 387538 were unchallenged and amounted to $5,204.50.[8]
  7. [17]
    Invoices 387536, 387537 and 387538: These claims were all disallowed, on the basis that:

... these three invoices were submitted some four months .... after finalisation of the principal contract with Ipswich City Council.  In the context of invoices for electrical work conducted during the month having to be submitted at the end of that month ... there is no reason for the submission of invoices four months after finalisation ... The project, it seems, lasted for approximately one year, with the monthly invoicing regime followed by P and S some of the time and with P and S being tardy some of the time.  There appears to be no reason why invoices could not have been finally submitted in February ’17.  ... For these reasons, these three invoices are disallowed. 

The juristic basis of this ruling may not be pellucid, but it is not challenged and need not be further considered. Ultimately it was held that P & S was entitled to $6,703, which, with interests and costs, totals $7,409.71.[9]

The counterclaim

  1. [18]
    Lawyer’s fees: RKC counterclaims $24,923.10, including $1975 for the cost of legal advice. This claim is untenable. Section 100 of the QCAT  Act provides:

Each party usually bears own costs. Other than as provided by this Act or an enabling Act, each party to a proceeding must bear the party’s own costs of the proceeding.

  1. [19]
    There is no relevant enabling Act. The QCAT Act for a costs order in exceptional cases, where, for example the party subjected to a costs order acts vexatiously or oppressively, or `in a way that  unnecessarily disadvantages another party’,[10] The presumption against a section 102 order is strong and will only be overcome if:

... the circumstances ... inherent in the phrase `the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs order in s 100.[11]

  1. [20]
    Furthermore, a proviso to section 102 excludes special costs orders in minor civil claims.[12] Clearly this not a case where RKC can recover legal costs, even if its counterclaim were successful.

Third party test reports

  1. [21]
    The major item in the counterclaim is an amount of $9,894.50 paid by RKC to a third party to replace the test reports that P & S declined to supply. However, the Adjudicator found that there was no contractual obligation upon P &  S to supply that material:

In the absence of any specific contractual obligation to provide test/data sheets as between P & S and RKC, there is no basis for demanding that P & S provide same. The fact that test sheets/data were required by Ipswich City Council does not of itself give efficacy for a charge for those tests to be imposed on P & S ... In short, RKC has no claim for third party electrical testing as against P & S.[13]

  1. [22]
    In other words P & S is not a party to the ICC-RKC contract, and terms in that contract do not simply `flow across’ from it to the separate oral agreement between RKC and P & S. With respect, as a matter of law this is clearly correct. There is no evidence that the term in question was incorporated in the oral subcontracting agreement.

Balance of counterclaim

  1. [23]
    As to the balance of the counterclaim, the Adjudicator, as judge of fact and credit, found that the evidence offered was simply insufficient to discharge RKC’s onus of proof, or to justify an award:

Concerning the supply of distribution boards. These invoices were not provided to the tribunal. There is no way to calculate on the evidence how the quantum of these claims was arrived at. The most that was said by RKC was that `the loss was incurred through ICC not approving the variations in specification costs on lack of information from {P & S] to support the quoted costs ... This value has been communicated to [P & S] on a number of occasions via email and oral discussions ...

It seems the variations were the subject of ongoing emails and oral discussion but never settled ... But even if the [RKC] assertions are accepted, there is no evidence of how the quantum in each case was arrived at. There is simply no reference point to ground a calculation. The same may be said of [other invoices]. It is not enough simply to say: `Invoiced hours do not marry up to invoice pricing.’ Once again the claim falls short. There is no reference point to ground a calculation.

... Finally, the Alan Cummings MSB upgrade, $7,201.85. There is no invoice as such here. What is contended is that invoices by P & S were submitted late, that repeated requests to invoice upgrade were not met, that claims could not be made in the progress payment process, that RKC suffered a loss between what was paid to P & S and what was recovered by ICC. Whilst all of that may have been the subject of discussion, the tribunal has absolutely no idea of how the $7,201.85 was arrived at. Any loss cannot be calculated and the claim fails.

Opportunity was afforded at the hearing for [RKC] to make further submissions but that was not taken up. Furthermore, it is noted that back on 4th September 2018, opportunity was afforded to place more material before the tribunal. It has not been so placed. 

  1. [24]
    In short – apart from the `third party’ claim, which failed for other reasons – RKC, for want of sufficient evidence, has failed to prove its case.
  2. [25]
    I return to RKC’s grounds of appeal, set out above.

Ground (i) Sum granted is incorrect

  1. [26]
    This allegation is insufficiently specific to reveal any appellable error of law. It serves only to signify disappointment with the decision. There is no indication how the incorrectness arises, or by what amount the award departs from the amount, if any, that RKC deems appropriate.

Ground (ii) No allowance for counterclaim

  1. [27]
    Considerable attention was paid to the counterclaim but, for reasons already given, it could not be allowed.

Ground (iii) Workmanship of P & S substandard

  1. [28]
    This assertion baldly contradicts the findings of the Tribunal.

Ground (iv) [P & S] failed to discharge legal obligations

  1. [29]
    This very broad assertion lacks all particulars and implies a legal opinion that is the prerogative of the Tribunal.

Ground (v)  Unable to attend tribunal

  1. [30]
    There is no substance in this submission. RKC was represented at the hearing by two representatives of the company, who received a full and fair hearing. No application was made for an adjournment. The expressions `medical grounds’ or their equivalent appear nowhere in the trial transcript. This ground also fails.

Ground (vi)  Trading name and ABN [of P & S] do not match entry

  1. [31]
    This is a mere assertion, not a ground of appeal. If there is a misnomer, it was open to RKC to raise the point at or before the trial. It did not do so. The description of P & S is consistent throughout the documentation, including RKC’s counter-application and its application for leave to appeal. This vexatious submission is rejected.

Nature and limits of leave applications

  1. [32]
    No reasonable ground of appeal is discernible. This case simply turns on its own facts as found by the judge of fact and credit, the primary decision maker.
  2. [33]
    It should be emphasised – and in this forum it frequently has to be emphasised – that an application for leave to appeal is not an opportunity to re-run the trial, or to second-guess the primary decision maker’s assessment of the evidence, or lack thereof. It is not an opportunity to advance evidence or arguments that could have been adduced at the trial, but, in the event, were not. It is not nearly enough to express disappointment or dissatisfaction with the result. Where reasonable minds may differ, a decision is not erroneous simply because one conclusion has been preferred to another possible view.[14] P & S, despite significant discounting of its claims, has accepted these things; RKC has not.
  3. [34]
    In modern court practice there is increasing emphasis on the public interest in finality of litigation, not least in tribunals such as QCAT. For that very reason there is no appeal as of right in proceedings for minor civil claims. Leave must be sought for that purpose and a reasonable prospect of demonstrating appellable error must be shown. Court time and public resources must be conserved, and other litigants in the queue must be considered.[15]
  4. [35]
    Findings of fact or credit at first instance are rarely disturbed, provide that they have rational support in the evidence:[16]

If there is evidence ... no error of law occurs simply because the judge prefers one version to another or one set of inferences to another. That is his function. ... Even if the evidence is strongly one way the appeal court may not intervene simply because it reaches a different conclusion, and this even if it regards the conclusion of the trial judge against the weight of the evidence.[17]

  1. [36]
    Or as a distinguished Queensland judge puts it:

It appears to me that a factual conclusion cannot be treated as infected with legal error unless it is supported by no evidence whatever, or unless it is clear beyond serious argument that it is wrong. That this court merely disagrees with a factual view of the tribunal does not show that a decision based on it is legally erroneous.[18]

 Resolution

  1. [37]
    RKC has not specified any legal error in the subject decision, and I detect none. The application for leave to appeal must be refused.

ORDER

  1. [38]
    The application for leave to appeal is refused.

Footnotes

[1]  As required by QCAT Act s 143(3).

[2]  Trial transcript 17 December 2018 (`TT’) page 12 line 26, transcript of decision 15 March 2019 (`JT’) page 2 line 39, JT

[3]  JT page 5 lines 28-30.

[4]  JT page 5 lines 31-32.

[5]  JT page 5 lines 41-42.

[6]  JT page 6 line 9.

[7]  JT page 6 line 15.

[8]  JT page 6 lines 19, 21.

[9]  JT page 8 lines 20-24.

[10]  QCAT Act s 102(3)(a). See for other examples s 48(1).

[11] Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 at [20] per Wilson J, President.

[12]  QCAT Act s 102(2).

[13]  JT page 4 lines 43-47, page 5 lines 1-2.

[14] Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611 at [131]; In re W (an infant) [1971] AC 682 at 700.

[15] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 217, followed by Wilson J, former President of this Tribunal, in The Pot Man Pty Ltd v Reaoch [2011] QCATA 318.

[16] Fox v Percy (2003) 214 CLR 118 at 125-126.

[17] Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151 per Kirby P.

[18] JFM v QFG and KG [1998] QCA 228 at p 21.

Close

Editorial Notes

  • Published Case Name:

    RKC Poles Pty Ltd v Pearson and Sellwood Pty Ltd

  • Shortened Case Name:

    RKC Poles Pty Ltd v Pearson and Sellwood Pty Ltd

  • MNC:

    [2020] QCATA 39

  • Court:

    QCATA

  • Judge(s):

    Member Forbes

  • Date:

    31 Mar 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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