Amos v Catakovic[1999] QCA 153

COURT OF APPEAL

PINCUS JA

MOYNIHAN J

ATKINSON J

BRISBANE

DATE 04/05/99

JUDGMENT

PINCUS JA:  The applicant, Mr Amos, has applied for leave to appeal against a judgment of His Honour Judge Botting.  The application is made under Section 118 of the District Court Act 1967 which came into effect on 1 August 1997.

There is no right of appeal but this Court has power to give leave under section 118(3).  The applicant's outline is drawn on the assumption that the application is governed by the former requirement that some important question of law or justice must be shown to be involved.  It is rather surprising that this error has been made since the law was changed 21 months ago.  Under the provisions of section 118(3) this Court has an unfettered discretion to grant or refuse leave. 

The decision of the District Court against which the applicant desires to appeal was given on appeal against a determination of the Queensland Building Tribunal relating to a dispute concerning the painting of a house.  The learned District Court Judge took the view that he should not grant leave unless there was an important matter of law which was necessary to be determined or an important matter of justice which fell for consideration.  His Honour went on to say that there might, perhaps, be other bases on which leave might be granted.  In the Tribunal's decision dated 2 December 1998 the evidence in the case is carefully analysed by the member.  What happened, according to the findings, was that the applicant engaged an unlicensed painter to work on an old house.  The work was done well enough but the applicant refused to pay and claimed that the work had been badly done.

The Tribunal members appeared to think that the applicant's conduct was less than honest.  He described the applicant as having acted unconscionably and, as I infer, this was partly because the applicant dishonestly engaged people he knew had no licence and undertook to pay them and had no real intention of doing so.

The applicant's claim includes a claim to be entitled to recover money he paid for the work and also to recover some damages but Mr O'Neill, who appears for the applicant, says that the latter part of that is not being pursued.

It is clear that the District Court's jurisdiction to hear appeals from the Queensland Building Tribunal is not confined.  That is, there is no necessity to find that there is any important question involved.  The circumstances which will properly influence the District Court in determining whether or not to grant leave are various and will, no doubt, include how much money is involved, whether any injustice appears to have been done, whether proper and sensible reasons have been given for the decision, and other matters which appeal to the common sense of the District Court Judge hearing the application for leave.

Of course, if the Tribunal's decision is plainly wrong that could be a good reason for granting leave.  The essence of the application for leave to appeal from the District Court to this Court is that the Tribunal which gave its decision on 2 December 1998, 13 days before this Court's decision in Zullo Enterprises Pty Ltd v. Sutton (Appeal No 8045 of 1998, 15 December 1998) acted on the basis that the lack of an appropriate licence under the statute did not prevent a Court from giving judgment to a plaintiff seeking to recover a fair price for work done in contravention of section 42(1) of the Queensland Building Services Authority Act 1991.

Now, it is clear that a quantum merit claim is not available in those circumstances and resolution of that point cannot be a ground for giving leave to appeal to this Court.  The real question is whether leave should be given on the basis that the Tribunal made a legal error.  One difficulty about doing that is that, on the Tribunal's findings, the applicant would, if the matter were remitted to the Tribunal, perhaps, have to face a claim in deceit.  On the findings it would, at least, be open to the respondent to argue that the applicant, having consciously chosen an unlicensed painter to do the work with the intention of not carrying out his undertaking to pay the painter, was guilty of fraud.

Certainly, it would affect his claim to recover that part of the price which he has paid, if not also affecting the respondent's claim for the balance of the price; but it seems to me that this is not the occasion on which we should decide that such a claim, that is a claim in fraud, could be made; this not being a suitable vehicle for decision of that point.

For these reasons, although the subsequent decision of this Court in Zullo showed that part of the reasoning of the Tribunal was erroneous, in my opinion leave should not be granted to appeal to this Court unless there is reason to think that the outcome is unjust.  On the findings of the Tribunal, which appear to be made with care, I can see no injustice in the result.  The application for leave should, in my opinion, be dismissed with costs.

MOYNIHAN J:  I agree.  The Tribunal's reasons carefully canvassed the evidence and expresses findings made on it which founds the views of the present situation recited by the Presiding Judge and for the reasons that he gave I agree with the order that he proposes.

ATKINSON J:  I agree with the reasons of the Honourable Mr Justice Pincus and Justice Moynihan and with the order proposed.

PINCUS JA:  The order of the Court is application dismissed with costs.