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Grujevski v EJM Pty Ltd QCATA 108
Grujevski v EJM Pty Ltd  QCATA 108
EJM Pty Ltd
On the papers
Senior Member Stilgoe OAM
28 June 2016
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – RECOVERY – where oral contract between builder and subcontractor – where subcontractor building own home – where subcontractor allowed to use builders’ accounts – where claim for payment of accounts – where claim for set off for work done – where Tribunal found set off not proven – whether grounds for leave to appeal
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Pickering v McArthur  QCA 294
Chambers v Jobling (1986) 7 NSWLR 1
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- EJM Pty Ltd is a commercial builder. It engaged Ruse Grujevski as a carpentry subcontractor on a number of jobs. In 2009, Mr Grujevski asked EJM to assist him in building his own house, by giving him access to the company’s trade account and subcontractors. EJM presented bills to Mr Grujevski for payment; he did not pay them. EJM filed an application in the minor civil disputes jurisdiction of the Tribunal. The Tribunal ordered Mr Grujevski pay EJM $10,150.00 from $15,061.60 claimed.
- Mr Grujevski wants to appeal that decision. Because this is an appeal from a decision of the Tribunal in its minor civil disputes jurisdiction, leave is necessary. Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.
- Mr Grujevski says that, although the Tribunal directed EJM to issue final certificates, that finding was not part of the Tribunal’s order. He says that Mr Manwin of EJM did not attend the Tribunal hearing, contrary to the Tribunal’s order. He says Mrs Manwin of EJM misled the Tribunal. He says the Tribunal miscalculated a credit due to him. He says that EJM made two payments to him after their final meeting, which payments contradict the Tribunal’s findings.
Should the Tribunal have ordered the production of final certificates?
- In the hearing on 2 November 2015, the Tribunal told Mr Grujevski that he would receive the final certificates when he paid EJM the money he owed. Mr Grujevski’s submission that the Tribunal ordered delivery of the final certificates is, therefore, not consistent with the transcript. Mr Grujevski has not paid EJM, so he is not entitled to the final certificates. The Tribunal was not in error. This is not a ground for appeal.
Mr Manwin was not available for cross-examination
- Mr Manwin was a director of EJM and the person with whom Mr Grujevski had contact.
- Mr Grujevski did not dispute that EJM provided access to its accounts for his benefit, or that he charged work to those accounts. He claimed a set off for work that he had done for EJM. Mr Grujevski says that, if Mr Manwin had appeared at the Tribunal, he could have confirmed that Mr Grujevski did the work.
- At the hearing of 27 August 2015, the Tribunal did express the view that Mr Manwin should give evidence at the adjourned hearing. At the hearing of 2 November 2015, the Tribunal expressed some surprise that Mr Manwin was absent. In its reasons for decision, the Tribunal was critical of Mr Manwin’s business practices and his absence from the Tribunal.
- But the onus of proving a set off fell to Mr Grujevski. Mr Grujevski produced a bill of quantities to the Tribunal that was based on his recollection of events six years earlier. Mr Grujevski had no original material to support the invoices or the bill of quantities: he had no timesheets and no diary. The Tribunal noted that Mr Grujevski made no attempt to claim a set off until EJM filed the claim. Mr Grujevski’s claim failed because he could not provide proof of value of the work done.
- Mr Manwin was not subject to a notice to attend. Therefore, he was not required to attend the Tribunal. The hearing was adjourned once to allow Mr Grujevski to file material to prove his set off. Although the Tribunal could have adjourned the hearing again, and compelled Mr Manwin’s attendance, I do not see how Mr Grujevski could have proved his case by cross-examining Mr Manwin. The Tribunal’s failure, of its own accord, to further adjourn the hearing and compel Mr Manwin’s attendance is not an error for which leave to appeal should be granted.
Did Mrs Manwin mislead the Tribunal?
- Mr Grujevski says that Mrs Manwin misled the Tribunal by stating that EJM always had a contract whereas, in this case, there was no contract. Mr Grujevski says the Tribunal did not take that misleading statement into account in making its decision.
- It was obvious that there was no written contract between Mr Grujevski and EJM. The Tribunal was critical of that fact. But Mr Grujevski failed in his claim because he could not produce evidence of the amounts he was claiming, which should also have been the subject of a written contract. The Tribunal was not in error in failing to find Mrs Manwin’s misleading statement about a written contract somehow proved Mr Grujevski’s case.
The calculation of the credit
- In its calculation of the amount Mr Grujevski owed, EJM allowed $1400.00 for ‘suffit’ (sic) installation. Mr Grujevski says that the credit should have been $2640.00, based on Mr Manwin’s handwritten notes of a meeting on 18 October 2009, where there is a note ‘soffit 2,400’.
- Even Mr Grujevski told the Tribunal that the meeting of 18 October 2015 did not result in agreement. There is a question mark against the figure of 2,400. Clearly, that amount was not agreed. If Mr Grujevski wanted a credit for $2,640.00 ($2,400.00 plus GST) then it was up to him to prove it. The Tribunal was not convinced by Mr Grujevski’s evidence. There was no error by the Tribunal in failing to adjust the credit for the soffit.
The two payments
- Mr Grujevski says that two additional payments by EJM to him after the meeting on 18 October 2009 prove that EJM owed him money.
- Those payments might prove that, as at 2009, EJM conceded that it owed Mr Grujevski some money but it proves nothing else. The parties were in dispute. After the meeting, EJM paid a further $9,500.00, which is reflected in its claim. The Tribunal was not in error in finding that those payments supported a view that EJM owed much more than it had paid Mr Grujevski.
- There is no reasonably arguable case that the Tribunal was in error. Leave to appeal should be refused.
QCAT Act s 142(3)(a)(i).
Pickering v McArthur  QCA 294 at .
Transcript of Proceedings, EJM Pty Ltd v Ruse Grujevski (Queensland Civil and Administrative Tribunal, MCDO28/15, Adjudicator LeMass, 2 November 2015) pages 1-6, lines 9-15 (‘Transcript 2 November 2015’).
Transcript of Proceedings, EJM Pty Ltd v Ruse Grujevski (Queensland Civil and Administrative Tribunal, MCDO28/15, Adjudicator LeMass, 27 August 2015) pages 1-25, lines 9-10; pages 1-27, lines 3-6 (‘Transcript 27 August 2015’).
Transcript 2 November 2015, pages 1-16, lines 43-44; pages 1-18, lines 27-29.
Ibid pages 1-39, lines 39-40.
Ibid pages 1-40, lines 19-22, 44-46.
Ibid pages 1-41, lines 1-9.
Ibid pages 1-42, lines 25-28.
Ibid pages 1-39, lines 40-46.
 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
Chambers v Jobling (1986) 7 NSWLR 1 at 10.
Transcript 2 November 2015, pages 1-13, lines 35-38.
- Published Case Name:
Ruse Grujevski v EJM Pty Ltd
- Shortened Case Name:
Grujevski v EJM Pty Ltd
 QCATA 108
Senior Member Stilgoe
28 Jun 2016