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Hie Electrical Pty Ltd v Nicolas QCATA 24
Hie Electrical Pty Ltd v Nicolas  QCATA 24
Hie Electrical Pty Ltd
On the papers
Senior Member Stilgoe OAM
5 January 2016
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – MINOR DEBT – where claim for electrical and other work – where respondent claimed offset/compromise – where tribunal found in favour of respondent – 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
Clarke v Japan Machines (Australia) Pty Ltd  1 Qd R 404
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
- Hie Electrical Pty Ltd filed a claim against Mr and Ms Nicolas for the cost of electrical work done over a period of almost eight years. The tribunal dismissed the claim.
- Hie 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.
- Hie has two grounds of appeal. It says that the learned Adjudicator did not read through all the information it provided to the tribunal. It also says that the learned Adjudicator was misled by Mr and Ms Nicolas at the hearing.
- Mr Ingham, of Hie, says he has further proof to show that the money is outstanding. Manuela Morris, Mr Ingham’s daughter, was a tenant of a property owned by Mr and Ms Nicolas. Hie has filed copies of invoices addressed to Ms Morris that relate to that property.
- The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could the parties have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?
- An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party’s case at the initial hearing.
- It was clear from Mr and Ms Nicolas’ response to the claim that Ms Morris’ tenancy, and money she spent during the tenancy, was a critical issue in the dispute, and that the offset of expenses against rent would be the subject of evidence before the tribunal. Mr Ingram filed an affidavit that annexed a number of invoices which related to the tenancy. He does not explain why the fresh evidence was not part of this affidavit. He has provided no explanation as to why this material was not available earlier. That evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Adjudicator.
- The learned Adjudicator took his time with this dispute. The hearing lasted almost two hours. It is apparent from the transcript that the learned Adjudicator considered each of the invoices in Mr Ingram’s material. He heard sworn evidence from the parties. The learned Adjudicator preferred the evidence of Mr and Ms Nicolas and he gave reasons why: Mr Ingram owed Mr and Ms Nicolas money from the sale of two cars for which he had not accounted; Mr Ingram must have known that he was claiming for costs that were compromised in Mr and Ms Nicolas’ claim for rent against his daughter; and Mr Ingram did not keep records that were appropriate for a professional electrician.
- The evidence can support the learned Adjudicator’s findings and there is nothing in the transcript that persuades me he should have taken a different view of the facts.
- There is no reasonably arguable case that the learned Adjudicator was in error. Leave to appeal should be refused.
- Published Case Name:
Hie Electrical Pty Ltd v Simon Nicolas and Marie Nicolas
- Shortened Case Name:
Hie Electrical Pty Ltd v Nicolas
 QCATA 24
Senior Member Stilgoe
05 Jan 2016