Lindgren v Aaron Trigg Painting (No 3)
[2011] QCATA 268
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- Unreported Judgment
- Lindgren v Aaron Trigg Painting (No 3)[2011] QCATA 268
- Add to List
Lindgren v Aaron Trigg Painting (No 3)[2011] QCATA 268
Lindgren v Aaron Trigg Painting (No 3)[2011] QCATA 268
CITATION: | Lindgren v Aaron Trigg Painting (No 3) [2011] QCATA 268 |
PARTIES: | Paula Catharina Lindgren (Applicant) v Aaron Trigg Painting (Respondent) |
APPLICATION NUMBER: | APL022-11 |
MATTER TYPE: | Appeals |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judge Fleur Kingham, Deputy President |
DELIVERED ON: | 14 April 2011 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – MINOR DEBT – where appellant did not allege error of law in original decision – where appellant sought to rely on new evidence – where new evidence sought to remedy defects in evidence presented at first instance – whether new evidence reasonably available at original hearing – whether new evidence would have led to different result Queensland Civil and Administrative Tribunal Act 2009, ss 137(b),142(3)(a)(i) Barmuncol Pty Ltd v Maroochy Shire Council [1983] 2 Qd R 639, applied Len Lichtnauer Developments P/L v James Trowse Constructions P/L [2005] QCA 214 [5], applied Orr v Holmes (1948) 76 CLR 632, 640, applied Public Service Board of New South Wales v Osmond (1986) 159 CLR 656, applied Wollongong Corporation v Cowan (1955) 93 CLR 435, 444, applied |
- 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.
- REASONS FOR DECISION
- [1]Mr Trigg, a licensed painter, was partly successful in his claim to recover the invoiced cost of painting work he performed on Ms Lindgren’s property. Before the contracted works were complete, the parties were in dispute about the quality of Mr Trigg’s work. Ms Lindgren did not allow Mr Trigg to complete the work and he adjusted his claim to account for that. He claimed the sum of $6,650 plus costs of $127.50, a total of $6,777.50.
- [2]The matter came on for hearing before a Magistrate sitting in Nambour in his capacity as a Member of QCAT. After receiving the evidence tendered by both parties, the learned Magistrate accepted the work was defective but not to such an extent that the entire job had to be redone. He assessed the value of the work performed by Mr Trigg at $3,500 and ordered Ms Lindgren to pay that sum to Mr Trigg. That was a little over half the sum invoiced.
- The compensation claim
- [3]To the extent that Ms Lindgren seeks a compensation order, the application must be rejected. When she responded to Mr Trigg’s claim, she did not seek any order against him, merely that his application was dismissed. She cannot launch a claim for compensation under the guise of an appeal against the original decision. She did not seek such an order at the first hearing.
- The request that QCAT order the QBSA to investigate the complaints
- [4]To the extent that Ms Lindgren seeks an order from QCAT to direct the QBSA to investigate the complaints she has made against Mr Trigg, it too is rejected. Ms Lindgren stated in her submissions that the QBSA will not act while these proceedings are on foot. That is the effect of a provision of the Queensland Building Services Authority Act 1991 (s 83). It prevents the QBSA from taking action in relation to a building dispute while there are proceedings about it before QCAT. Once these appeal proceedings are concluded, there will be no constraint on the QBSA investigating the complaint and taking action, if any, it considers necessary.
- The order to pay Mr Trigg $3,500
- [5]That leaves Ms Lindgren’s application for leave to appeal from the original decision that she pay $3,500 to Mr Trigg.
- [6]There is no right to appeal a Minor Civil Dispute decision. Leave must be granted.[1] Ms Lindgren’s application does not reveal any basis upon which to grant leave. It does not allege there was any error of law or fact in the decision made by the learned Magistrate. Nor is there any issue on which the public would benefit from an appellate decision.
- False and misleading statements?
- [7]Ms Lindgren alleges Mr Trigg made false and misleading statements at the original hearing. She also seeks to rely on evidence not presented to the learned Magistrate.
- [8]Mr Trigg contests Ms Lindgren’s allegations and would seek to explain statements she alleges were misleading. Without getting into the detail of the allegations about Mr Trigg’s evidence, they relate to statements about attempts to have the work inspected and about changes made to the contract. Neither of those topics appears relevant to the decision under challenge.
- [9]The learned Magistrate proceeded on the basis that Mr Trigg was not entitled to rely on the contract because the work was not performed to the required standard. Instead he ordered Ms Lindgren to pay Mr Trigg a sum that represented the value of the work performed (a quantum meruit award). On limited information, and at the end of an abbreviated hearing, his Honour placed a value on Mr Trigg’s work.
- Assessment of the value of Mr Trigg’s work
- [10]Unfortunately, he did not clearly state how he arrived at the figure. A decision should be sufficiently explained so that the parties can understand how it was arrived at.2 Ms Lindgren has not pointed to any error in the Magistrate’s assessment. It is implicit in her claim for compensation that she considers Mr Trigg’s work had no value. But she did not lead evidence at the original hearing to the effect that Mr Trigg's work had no value, nor has she sought to lead evidence to that effect on appeal.
- [11]
- [12]His Honour heard from both Ms Lindgren and Mr Trigg, he received photographs taken by both parties and a statement from a second painter who performed work on the property after Mr Trigg.
- [13]There was no independent assessment of Mr Trigg’s work before it was repainted. The only assessment before his Honour was that given by the second painter, someone with a personal interest in the assessment. At that time he was not a licensed contractor. The QBSA took action against him for performing the work on Ms Lindgren’s property without a licence.
- [14]Ms Lindgren also relied on photographs to demonstrate the poor state of the work. Mr Trigg questioned whether they were taken before or after the second painter had prepared the house for repainting by water blasting the surfaces. Mr Trigg said that if the surfaces were water blasted before the paint had cured, the paint would lift off in the way depicted in some of the photos.
- [15]That would not account for all of the issues revealed in the photographs. His Honour drew Mr Trigg’s attention to what he saw as specific defects in the paint work. Mr Trigg said the paint took longer to cure because of the very wet weather. Insufficient time had passed to allow it to cure, before Ms Lindgren decided it was defective. Mr Trigg explained that there was further work to be done and, had he been able to finish the job those matters would be addressed. Even with that explanation, his Honour accepted that Mr Trigg’s work was not to the standard required by the contract.
- [16]The Magistrate has evidently enough awarded roughly half the amount claimed. That result would not seem to be unreasonable given the state of the evidence before him.
- Further evidence
- [17]The further evidence that Ms Lindgren wishes to lead, in effect, covers the same ground traversed in the original proceedings. The statement by the second painter is sworn to (something his Honour noted as an issue at the first hearing) and there are further statements either to bolster the credit of Ms Lindgren’s witnesses or to assess Mr Trigg’s work based on the photographs tendered by Ms Lindgren at the first hearing.
- [18]The principle of finality in litigation counts against evidence not presented at the first hearing being allowed on appeal. Parties are expected to bring their whole case forward at the first hearing. For this reason, new evidence is generally admitted on appeal only in exceptional cases and where it would be unjust to refuse leave.
- [19]Generally it will not be allowed unless it is ‘almost certain’[5] or at least ‘reasonably clear’[6] that the new evidence would have led to the opposite result had it been produced at the first hearing. I am not persuaded the decision would have been different if the evidence Ms Lindgren now wants to produce had been available at the first hearing.
- [20]The additional evidence about Mr Trigg’s work is based on the photographs that were tendered by Ms Lindgren at the first hearing and inspections carried out after the hearing. Mr Trigg’s objection that it is not clear what had been done by the second painter before the photographs were taken has not been addressed. As such, the same uncertainty about their value as evidence of the quality of his work remains. In any case, his Honour accepted that Mr Trigg’s work was not to standard. The further evidence would not lead to a better assessment of the value of the Mr Trigg’s work. Rather it serves to explain why the work was not acceptable.
- [21]Even if it might be thought the further evidence could lead to a different result, the applicant must also demonstrate the evidence was not reasonably available to her at the time of the hearing. Ms Lindgren has not demonstrated that is the case here.
- [22]In effect, Ms Lindgren wants the opportunity to reopen the original hearing. An application to reopen a proceeding may be granted if a party would suffer a substantial injustice if it were not reopened, because significant new evidence has arisen and the evidence was not reasonably available when the proceeding was first heard and decided.[7] Ms Lindgren did not apply to reopen the proceedings but for leave to appeal the decision.
- [23]The function of an appeal is to correct an error made at the first hearing. No material error on the part of the learned Magistrate has been raised and there is no question of broader significance or ongoing importance which justifies appellate consideration.
- [24]This is not an appropriate case in which to grant leave to appeal. The application for leave to appeal is dismissed.
Footnotes
[1]Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(i).
[2]Public Service Board of New South Wales v Osmond (1986) 159 CLR 656.
[3]Len Lichtnauer Developments P/L v James Trowse Constructions P/L [2005] QCA 214 [5].
[4]Barmuncol Pty Ltd v Maroochy Shire Council [1983] 2 Qd R 639.
[5]Orr v Holmes (1948) 76 CLR 632, 640.
[6]Wollongong Corporation v Cowan (1955) 93 CLR 435, 444.
[7]Queensland Civil and Administrative Tribunal Act 2009, s 137(b).