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Walker v Rosendahl QCATA 88
Walker v Rosendahl t/as Rosendahl Constructions & Anor  QCATA 88
James Killen Walker
Ivan Rosendahl t/as Rosendahl Constructions
Garden City Sheds t/as The Shed Company
22 May 2015
Justice D Thomas, President
8 January 2016
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – whether grounds for leave to appeal
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 142
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
O'Brien v Gladstone Regional Council  QCATA 82
APPEARANCES and REPRESENTATION (if any):
James Walker appeared on his own behalf
Bryce Hunt appeared for Garden City Sheds
REASONS FOR DECISION
- On 10 June 2008, Mr James Walker entered into a contract to purchase a shed with Garden City Sheds trading as The Shed Company (“The Shed Company”). The Shed Company invoiced Mr Walker $16,250. The dispute between Mr Walker and The Shed Company relates to whether this contract included erecting the shed, or just the supply of the shed materials.
- In April 2013 (almost 5 years after the contract was signed), Mr Walker contacted Mr Bryce Hunt at The Shed Company to ask him who he recommended to erect the shed. Mr Hunt nominated Ivan Rosendahl. Mr Walker engaged Mr Rosendahl to build the shed, which Mr Rosendahl did. Mr Rosendahl invoiced Mr Walker $4,860. Mr Walker did not pay the invoice, so Mr Rosendahl filed a claim in the Tribunal (the original proceeding).
- Mr Walker applied to join The Shed Company as a party to Mr Rosendahl’s claim, on the basis that The Shed Company was liable to pay Mr Rosendahl’s costs of erection pursuant to the contract of 10 June 2008. On 24 July 2014, a Magistrate sitting in the minor civil disputes jurisdiction of the Tribunal ordered Mr Walker pay Mr Rosendahl $5,540.55 for erection of the shed (plus interest and filing fees), on the basis that it was Mr Walker who had engaged Mr Rosendahl.
- The question before the Magistrate turned to whether The Shed Company was liable to compensate Mr Walker for the cost of construction. The contract contained contradictory clauses. The quote for $16,250 had, under “Other Inclusions/Extras”, the words “Erection Cost Included:” followed by a blank space. The attached “Condition of Sale” had the “Start and Completion Dates” of building crossed out, and “N/A” written where the builder’s licence number should be inserted. Mr Hunt’s explanation for the contradiction was that the quote contained a typographical error. The word “not” should have been included in “Erection Cost [Not] Included:”, and that this was consistent with the striking out of the “Start and Completion Dates” as no building dates were ever contemplated. On the other hand, Mr Walker’s submission was that the words “Erection Cost Included:” meant just that.
- The Magistrate found that the quote had a typographical error (that the word ‘Not’ had been mistakenly omitted) and that the building work was never contemplated. Therefore, as The Shed Company had not contracted to erect the shed, it owed no money to Mr Walker for the costs of erection.
- Mr Walker wants to appeal the Magistrate’s finding that The Shed Company had not contracted to erect the shed. 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.
- It is well settled that upon an appeal from a Magistrate or Judge of first instance who has had the advantage of hearing the evidence, an appellate Tribunal should not reverse a decision on questions of fact unless it sees that the decision is manifestly wrong. A finding of fact will usually not be disturbed on appeal if the facts inferred by the Tribunal are capable of supporting its conclusions. However, an appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.
- Mr Rosendahl did not attend at the hearing of the application for leave to appeal and appeal. Given that the grounds for the application for leave to appeal and appeal does not relate to the part of the decision that concerns him, the Appeal Tribunal proceeded in his absence.
Mr Walker’s Submissions
- Mr Walker’s submissions can be summarised as:
A) The Tribunal did not have proper regard to his submissions. Even though he complied with the registry’s advice to post his submissions to the Brisbane office of the Tribunal, they were not on the file in Toowoomba until he handed up a copy that day. The Magistrate, therefore, only made a cursory examination of his material, which led the Magistrate to misunderstand the evidence. This was reflected in his reasons for decision. There was no typographical error in the quotation, but rather a specific inclusion of erection costs.
B) The Tribunal’s findings were against the weight of evidence.
C) The Tribunal rectified the contract between the parties when there was no justification for doing so.
- Each of these arguments will be considered in turn.
A) Procedural Fairness
- The file shows that the Tribunal registry in Brisbane received Mr Walker’s submissions on 22 July 2014. The Tribunal in Toowoomba received the submissions on 28 July 2014, after the date of the hearing. It was unfortunate that the registry in Toowoomba advised Mr Walker to send his submissions to Brisbane.
- The learned Magistrate asked to see the contract for the sale of the shed which was part of Mr Walker’s submissions. The Magistrate read the documents provided to him. It is apparent from the transcript that the learned Magistrate understood Mr Walker’s argument. As a result I am not persuaded that Mr Walker suffered any procedural unfairness because the material handed up to the Magistrate at the hearing (and clearly considered by the Magistrate) was not available on the file before the hearing.
- The transcript also reveals that the learned Magistrate did interrupt Mr Walker quite extensively. Although Mr Walker did not take issue with this and raise it in submissions, it is a relevant procedural fairness consideration.
- In conducting a proceeding, the Tribunal must observe the rules of natural justice and ensure that all relevant material is disclosed to the Tribunal. This is to enable it to decide the proceeding with all relevant facts. It follows that a party to a proceeding should be afforded the opportunity to present their case to ensure that everything that could be said in their favour is presented.
- The Tribunal has previously considered interruptions made by decision-makers as a ground of appeal in the context of procedural fairness. In O'Brien v Gladstone Regional Council, the applicant submitted that she was denied a fair hearing by being interrupted by the Member on several occasions, which broke her train of thought. The applicant was not successful on this ground as “parties must expect some degree of exploration and discussion of issues by Members during the usual course of a hearing”. This is in pursuance of the requirement of the Tribunal to ensure all relevant information is put before it.
- The transcript reveals the extent of the interruptions by the Magistrate while Mr Walker was presenting his case. However, it is also clear from the transcript that the Magistrate understood Mr Walker’s argument. There is no suggestion from the transcript, nor from Mr Walker’s submissions on appeal, that he was denied an opportunity to present his case. I conclude that Mr Walker was not denied procedural fairness as a result of the learned Magistrate’s interruptions.
B) The weight of evidence
- Mr Walker takes issue with the learned Magistrate’s finding that “Erection Costs Included:” had a typographical error, and explains that the “Start and Completion Dates” were crossed out because at the time of the contract the parties were unable to determine when construction could begin, as Mr Walker still had to level the site and lay the slab. He states that “his Honour was obliged to construe the document consistently with its express terms”. The issue with this submission is that the express terms of the contract were contradictory.
- Mr Walker also submits that, in support of the conclusion that The Shed Company is not responsible for the cost of erecting the shed, the learned Magistrate referred to Mr Hunt’s evidence of a conversation between Mr Hunt and Mr Walker that does not support the learned Magistrate’s conclusions.
- The alleged error in the learned Magistrate’s reasoning appears in the transcript this way:
… there’s also a clear indication in the conditions that they’re not bound. …
A clear indication by – to me that he had no intention of erecting the shed – no intention at all. And had he agreed to erect the shed, I’m satisfied that when you rang him up – if there was an obligation and he would have said, well, righto, well now you’re asking me to pay – to incur erection costs five years after I agreed to it.
- In fact, Mr Hunt did not give evidence about that conversation. Mr Walker referred to it in his statement, and the learned Magistrate read that part of Mr Walker’s statement into the record.
- The relevant part of Mr Walker’s statement is as follows:
He had forgotten what was in the Contract and, if he had realised that he was responsible for the erection of the shed, that he would have done the job himself. He said that he had not taken into account any liability for the erection, and could I possibly pay half to get him out of a jam.
- That was Mr Walker’s evidence, but it was contested in Mr Hunt’s evidence. Mr Hunt maintained that the contract did not include erection of the shed.
- In his reasons for decision, the learned Magistrate considered all of the evidence, not limited to the extract from Mr Walker’s statement. Mr Walker’s own evidence is significant. His evidence was that he did not ring Mr Hunt and say “when are you erecting my shed?”. Instead, he rang to ask “who’s going to build the shed?”. That question is consistent with some confusion between the parties as to whether erection of Mr Walker’s shed was included in the contract of sale.
- Therefore, the learned Magistrate’s decision is not against the weight of the evidence as a whole.
C) Rectification of the agreement
- Mr Walker’s submissions about the law of rectification are accurate. The question before the learned Magistrate was not, however, a matter of rectification but a matter of construction of the contract.
- Page 1 of the contract records “Erection Cost Included:”. Page 2 of the contract contains the detailed terms of the agreement. The learned Magistrate concluded that there was a conflict between the face of the contract and the terms of the contract. He resolved that conflict by preferring the terms of the contract. He referred to reasons for doing so.
- If The Shed Company had agreed to erect the shed, then it had agreed to perform building work. The Queensland Building Services Authority Act 1991 (Qld) (‘QBSA Act’) imposes obligations on builders about the form of the contract. The Shed Company deleted those terms of the contract that related to its obligations under the QBSA Act. That is consistent with a “supply only” contract.
- The contract includes a term about delivery, which is normally 20 working days from the date the order is placed with the manufacturer. If the customer does not accept delivery, the contract stipulates that the customer will meet all additional costs of re-delivery. The Shed Company therefore had a contractual right to charge storage costs, or to charge additional costs of delivery five years later.
- The deleted sections of the contract include delay costs. If Mr Walker was correct, and the contract included erection, delay costs should have been the subject of agreement between the parties.
- The learned Magistrate looked at the entire contract when interpreting it. He determined that, when read as a whole, the contract did not include erection. He therefore determined that there was an error on page 1 of the contract.
- Another possible interpretation of the error on page 1 is available by considering the blank space left after the words “Erection Cost Included:”. When considering the entire contract, including its formatting, it would be open to reason that the blank space was left after those words in order for a monetary figure to appear, once agreed to by the parties. The face of the quote itemises the figure of $16,250 as “Deposit (with order): $1,250” and “Kit on Factory order: $15,000”. The omission of a figure beside “Erection Cost Included:” suggests that erection costs were never accounted for in the contract. That is, erection was not included.
- The interpretation of the contract reached by the learned Magistrate at first instance was open to him. I can find no compelling reason to come to a different view.
- Leave to appeal should be refused.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 142(3)(a)(i).
 Pickering v McArthur  QCA 294 at .
 Dearman v Dearman (1908) 7 CLR 459.
 Fox v Percy (2003) 214 CLR 118 at 125-126; Dearman v Dearman (1908) 7 CLR 459 at 561.
 Chambers v Jobling (1986) 7 NSWLR 1 at 10.
 Transcript of proceedings before Magistrate Carroll, Toowoomba, 24 July 2014, page 1‑10, line 34 to page 1-11, lines 1 – 2.
 Ibid page 1-11, line 6; page 1-15, line 44.
 QCAT Act, ss 28(1)(a) and (e).
 South Australia v O'Shea (1987) 163 CLR 378 at 405.
  QCATA 82.
 O'Brien v Gladstone Regional Council  QCATA 82 at .
 Applicant’s submissions filed 12 February 2015, paragraph 6.
 Transcript of proceedings before Magistrate Carroll, Toowoomba, 24 July 2014, page 1‑18, 41.
 Ibid, page 1-20, lines 35 – 38.
 Ibid, page 1-17, line 1-46; page 1-20, lines 1 – 20.
- Published Case Name:
James Killen Walker v Ivan Rosendahl t/as Rosendahl Constructions and Garden City Sheds t/as The Shed Company
- Shortened Case Name:
Walker v Rosendahl
 QCATA 88
08 Jan 2016