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Mars Crook Pty Ltd v DeVita atf AF & RM DeVita Family Trust QCATA 74
Mars Crook Pty Ltd & ors v DeVita atf AF & RM DeVita Family Trust & anor  QCATA 74
Mars Crook Pty Ltd
Aldo Fabrizio DeVita atf AF & RM DeVita
Robyn Margaret DeVita atf AF & RM DeVita
On the papers
Senior Member Stilgoe OAM
20 May 2016
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – MINOR DEBT – where electrical work done at request of individual – where invoice sent to business name – where identity of business name owner not disclosed – where work alleged to be faulty – where overcharge alleged – where Tribunal found invoice validly owing – whether grounds for leave to appeal
Dearman v Dearman (1908) 7 CLR 549
House v The King (1936) 55 CLR 499
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
- Aldo DeVita, trading as Living Electrical, did some electrical work for Brisbane Machine Shop when it moved into new premises. The scope of work was agreed between Mr DeVita and Stephen Crook. Mr DeVita rendered invoices. They were not paid. He filed a claim for minor debt naming Mars Crook Pty Ltd, Mr Crook and Merrill Crook, all trading as Brisbane Machine Shop. The Tribunal found there was a contract between Mr DeVita and Mr Crook.
- Mr Crook submitted that the work was substandard. The Tribunal discounted Living Electrical’s invoice to take account of that submission and ordered that Mr Crook pay $7,356.46
- The appellants want 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.
- The appellants say that the decision to make Mr Crook personally liable is in error. They say the Tribunal did not address the issue of an overcharge. They continue to say that the work was faulty. They say that the Tribunal refused an application for legal representation in a matter which, they say, is complex.
Leave for representation
- There are many decisions of the Tribunal that set out the criteria considered by the Tribunal when deciding whether to grant leave for legal representation. Relevantly, the grant of legal representation must be in the interests of justice, and generally, the proceeding must be likely to involve complex questions of fact or law. A decision about leave for representation is, therefore, an exercise of the Tribunal’s discretion.
- The Appeal Tribunal will not interfere with an exercise of the Tribunal’s discretion unless it can be shown that the Tribunal acted upon a wrong principle, or made mistakes of fact which affected the decision, or was influenced by irrelevant matters.
- The Transcript of Proceedings shows that lawyers conducted the case on behalf of the appellants by filing material and submissions. The appellants filed an application to be represented on 18 November 2015. By that time, they had been before the Tribunal twice. The issue that was exercising the Tribunal’s mind was one of fact. It was not a complex question of fact. I am not persuaded that the Tribunal’s decision to refuse legal representation was in error.
Should Mr Crook have been personally liable?
- The Tribunal found that the contract was formed between Stephen Crook and Living Electrical through conversations between those parties.
- The appellants submit that all contractual, leasing and invoicing arrangements were directed to Mars Crook Pty Ltd trading as Brisbane Machine Shop. Living Electrical’s invoices are made out to Brisbane Machine Shop, but there is nothing from the appellants to suggest to Living Electrical that the company was trading under this business name.
- The leasing arrangements were between the company and the lessor. The lessor sent Living Electrical part of the lease, which identified the lessor’s work, but this was not a part that would identify the tenant in any way. Therefore, the appellants cannot rely on the lease to establish the identity of the contracting parties.
- The evidence can support the Tribunal’s findings that the contract was made with Mr Crook personally and I can find no compelling reason to come to a contrary view.
- The appellants say that the hearing did not address material supplied by Brisbane Machine Shop for which it was billed ($798.92). They say that the hearing did not address material billed to Brisbane Machine Shop that was the lessor’s obligation ($610.00). They also say that the hearing did not address an overcharge which was the difference between the amount of cabling billed and the amount of cabling used ($384.00).
- The Tribunal’s decision does not expressly deal with this issue but I am satisfied that the appellants have not suffered any injustice as a result.
- The appellants raised the issue at the hearing and the Tribunal heard that Living Electrical either took the items into account or did not use them because they were not fit for purpose. At the first hearing, on 8 September 2015, the Tribunal allowed an adjournment because the appellants had no evidence to demonstrate the difference in the equipment used and the equipment charged. At the resumed hearing, the appellants’ evidence was no better. They had not, therefore, proven that part of their case.
- Further, the Tribunal deducted a global amount of $1420.00 for duplicated work which appeared to cover some of the matters of which the appellants complained.
The work was faulty
- The appellants have filed fresh evidence in support of their appeal on this ground. The Appeal 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 appellants 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. There was a large volume of evidence before the Tribunal. Living Electrical filed its claim in March 2015. The parties attended a Tribunal hearing on 17 July 2015, 8 September 2015 and 26 November 2015. I can see no reason why the appellants could not have filed this evidence before the Tribunal below. The application for leave to file fresh evidence is refused.
- The Tribunal noted that there was no evidence of loss of business earnings, as claimed by the appellants.
- The evidence can support a finding that the appellants failed to prove their case and I can find no compelling reason to come to a different view.
- 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 .
 QCAT Act s 43(1).
 House v The King (1936) 55 CLR 499 at 504.
 Transcript of Proceedings (QCAT, MCDO206-15, Adjudicator A Walsh, 26 November 2015) (‘Transcript’) pages 1-102.
 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 pages 1-30, 1-31, 1-34, 1-39,
 Transcript pages 1-54, lines 11 - 15.
 Transcript pages 1-99, line 44.
 QCAT Act ss 137 and 138.
 Clarke v Japan Machines (Australia) Pty Ltd  1 Qd R 404 at 408.
 Transcript pages 1-102, line 47.
 Transcript pages 1-105, line 3.
 Transcript pages 1-104, line 47.
- Published Case Name:
Mars Crook Pty Ltd & ors v DeVita atf AF & RM DeVita Family Trust & anor
- Shortened Case Name:
Mars Crook Pty Ltd v DeVita atf AF & RM DeVita Family Trust
 QCATA 74
Senior Member Stilgoe OAM
20 May 2016