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Morelli v Development Management Queensland QCATA 54
Morelli v Development Management Queensland  QCATA 54
Development Management Queensland
On the papers
Senior Member Stilgoe OAM
3 May 2016
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – MINOR DEBT – BUILDING ENGINEERING AND REALTED CONTRACTS – where contract for town planning advice – where quote for work with estimated milestones – where contract provided for invoice at hourly rates – where council advised proposal unlikely to be approved – where client terminated contract – where invoice rendered for work to date – where client considered invoice excessive and not in line with quote – where tribunal ordered payment of invoice – 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
- Urban Design Company Pty Ltd operates a town planning practice under the name Development Management Queensland (DMQ). Roger McCallum is a director of the company. In April 2012, Rick Morelli engaged DMQ to act as his town planner in a subdivision and road realignment project. DMQ sent Mr Morelli a project brief with estimated costs.
- On 18 December 2012, Mr Morelli terminated DMQ’s retainer. DMQ sent an invoice for $2,677.40. Mr Morelli did not pay the invoice, so DMQ filed a minor debt claim in the minor civil disputes jurisdiction of the Tribunal. The Tribunal found in favour of DMQ, and ordered Mr Morelli pay it $3,204.98 (adding costs and interest).
- DMQ 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 Morelli says the Tribunal assumed the truth of oral evidence from Mr McCallum without asking for documentary evidence. He says the Tribunal believed Mr McCallum but dismissed his own evidence. He says the Tribunal accepted DMQ’s activity report, even though there was clear evidence of price gouging in the document. He says the Tribunal did not explore the unexplained activity in that report and did not notice the inconsistency between the report and the invoice and the contract. Mr Morelli says Mr McCallum misled the Tribunal when he said that the town plan had not been changed. Mr Morelli says that the Tribunal accepted Mr McCallum’s competence when the documents clearly showed he was not competent and did not complete the work in accordance with the brief.
- Mr Morelli wants to submit fresh evidence with his application for leave to appeal. 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?
- Mr Morelli wants to submit a statement of his version of events. He does not explain why he did not file a statement before the Tribunal below. He did give this evidence, although perhaps not as eloquently, at the hearing. Mr Morelli could have submitted a statement before the hearing, but he did not. The material contained in the statement will not have an important impact on the result of the hearing. It should not be admitted.
- Mr Morelli has also provided a copy of an email from the Townsville City Council stating that the town plan changed on 27 November 2014. DMQ was engaged between April and December 2012. A change to the town plan in 2014 is irrelevant.
- Mr Morelli has provided an invoice from 2pigs Enterprises Pty Ltd, showing that the cost of a sketch plan was $110. The quote is dated 19 February 2016. I do not know the context in which the quote was obtained. I cannot see how this quote, some years later, is either credible or will have an important impact on the result of the case.
- 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. The evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the Tribunal.
Errors of fact
- Mr Morelli’s grounds of appeal are, essentially, challenges to the Tribunal’s findings of fact. The Appeal Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions. An Appellate Tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.
- Mr Morelli told the Tribunal that he did not know that the Council would not support a subdivision of less than 40 ha blocks until December. Mr McCallum told the Tribunal that he discussed that fact with Mr Morelli at a site meeting. There was no documentary evidence to support Mr McCallum’s evidence. The Tribunal was left with two competing versions of events. It preferred Mr McCallum’s view. The evidence can support that finding and I can find no compelling reason to come to a contrary view.
- Mr Morelli says that the activity report is evidence of price gouging because it shows a cost of $650 for preparing a sketch plan which is nearly the full quoted price of all research and briefing. As the Tribunal pointed out, DMQ’s quote provided an estimate for various stages but also made it clear that DMQ would charge its work on an hourly rate. The activity report shows a charge of only $150 for a sketch plan of the subdivision; there is a further $200 for sketch planning but this appears to relate to the project as a whole. I am not satisfied that the activity report shows price gouging by DMQ.
- Mr Morelli says that the activity report shows an unexplained amount of $474 in addition to the project hours. The amount is not unexplained; the activity report has an activity against each cost. $474 is not in addition to the project hours because the project was being billed at an hourly rate and the “project hours” was simply an estimate.
- The discrepancy between the invoice and the contract has been explained. The contract provided estimates for work whereas the invoice was for actual costs. I do not see any contradiction between the invoice and the activity report. Mr Morelli might see a conflict between the invoice and what he thought happened but that is not a point he has raised on appeal. Even if he did raise that point, the Tribunal accepted that DMQ did the work the subject of the invoice. The evidence is capable of supporting that conclusion and I can find no compelling reason to come to a contrary view.
- As I have already observed, for the period of DMQ’s engagement, Mr McCallum was correct when he said that the town plan had not changed.
- It is clear from Mr Morelli’s submissions that he believes that DMQ was incompetent and that he expected DMQ to achieve a particular result. DMQ’s quote did not, in any way, guarantee success. In fact, it raised significant issues that stood in the path of a successful subdivision. Mr Morelli wanted 10 ha blocks in a planning area that provided for 40 ha lots. On any view, the task ahead of DMQ was challenging. The evidence suggests that, when Mr McCallum advised Mr Morelli of the Council’s preliminary view at the site visit, there was a decision to persist. Mr Morelli says that, if he had known, he would have stopped the project at that point. That evidence, to give up so quickly, is inconsistent with his desire to pursue a planning outcome that was at odds with the planning scheme. The evidence does not support a finding that DMQ was incompetent.
- There is nothing in the transcript to persuade me that the Tribunal should have taken a different view of the facts. 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 .
 Clarke v Japan Machines (Australia) Pty Ltd  1 Qd R 404 at 408.
 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 page 1-31, lines 11 – 12.
- Published Case Name:
Morelli v Development Management Queensland
- Shortened Case Name:
Morelli v Development Management Queensland
 QCATA 54
Senior Member Stilgoe OAM
03 May 2016