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Total Pool Renovations v Farmakis QCATA 92
Total Pool Renovations v Farmakis  QCATA 92
Total Pool Renovations
On the papers
Senior Member Stilgoe OAM
12 April 2016
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – MINOR DEBT – where invoice for pool renovation – where some part payments by cash – where respondent alleged further cash payments – where further cash payments denied by applicant – where Tribunal found cash payments were made – whether grounds for leave to appeal
Queensland Civil and Administrative Tribunal Act 2009 (Qld), 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
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
- John Carmichael trades under the name Total Pool Renovations. He renovated Sue Farmakis’ pool and water feature, supplied new equipment and repaired some broken water pipes. He rendered invoices totalling $10,076. He acknowledged Ms Farmakis paid $2,500 of that debt but he wanted her to pay the balance. He engaged Brian Towell, trading as Astor Credit Consultants to collect the debt. In due course, Mr Towell filed a claim for the balance of the debt due.
- The Tribunal found that Ms Farmakis had paid a further $2,500 in cash. It ordered Ms Farmakis pay Total Pool Renovations $5,076 plus interest.
- Mr Towell, as agent for Total Pool Renovations, filed an application for leave to appeal that decision. Although the Tribunal documents show Brian Towell, trading as Astor Credit Consultants agent for Total Pool Renovations as the applicant in this application, the proper applicant is Mr Carmichael.
- 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 Towell, as Mr Carmichael’s agent, says the Tribunal accepted Ms Farmakis’ evidence that she paid an additional $2,500 in cash when there was no evidence to support that finding. He says Ms Farmakis claimed it did not repair the broken pipes when the evidence supported a finding that it did repair the broken pipes. He says the Tribunal did not take into account numerous text messages from Ms Farmakis acknowledging the debt.
- Ms Farmakis told the Tribunal she made a cash payment of $1,000 in October 2014 to start the work. Mr Carmichael denied receipt of that money but Mr Towell sent an email to Ms Farmakis in May 2015 in which he confirms the receipt of a deposit of $1,000. The evidence can support the Tribunal’s finding that Ms Farmakis paid that money and I can find no compelling reason to come to a contrary view.
- I am not of the same view about the alleged payment of $1,500 on 28 April 2015. The only evidence of this transaction is a cash withdrawal on Ms Farmakis’ bank statement on 23 April 2015 and her oral evidence that she paid it directly to Mr Carmichael.
- The Tribunal had a series of emails between Mr Carmichael and Ms Farmakis. Although the dates of the particular exchanges have been lost, the last exchange makes it clear that Mr Carmichael would no longer deal directly with Ms Farmakis and that he intended to engage a debt collector. Mr Towell started communicating with Ms Farmakis by email of 21 April 2015. A series of emails followed. Not once did Ms Farmakis tell Mr Towell that she met with, and paid, Mr Carmichael $1,500 on 28 April 2015.
- I note that 28 April 2015 was the first working day after the ANZAC Day long weekend. It is just as likely that Ms Farmakis withdrew cash for the weekend as it is that she paid Mr Carmichael cash in the middle of a dispute with his debt collector. Taking into account the email trail between Ms Farmakis and Mr Towell, the evidence does not support a finding that Ms Farmakis paid $1,500 on 28 April, 2015. Leave to appeal should be granted and the appeal allowed.
- The text messages from Ms Farmakis acknowledge a debt, not the debt. On their own, the messages do not assist Mr Carmichael’s case and I find no error in the Tribunal’s failure to refer to them directly, except to the extent that I have referred to them above.
- I do not agree that the Tribunal erred in its consideration of the claim for broken pipes. The Tribunal’s reasons for decision accept the cost of that work as part of the claim.
- Leave to appeal should be granted and the appeal allowed. The Tribunal should not have deducted the second alleged payment of $1,500. Therefore, the decision of 30 October 2015 is set aside and the following decision is substituted:
a)Sue Farmakis shall pay John Carmichael trading as Total Pool Renovations $6,804.42 by 3 May 2016.
 QCAT Act, s 142(3)(a)(i).
 Pickering v McArthur  QCA 294 at .
 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 19 October 2015 page 1-30, lines 5-7.
 Transcript 30 October 2015 page 1-6, line 3.
- Published Case Name:
Total Pool Renovations v Sue Farmakis
- Shortened Case Name:
Total Pool Renovations v Farmakis
 QCATA 92
Senior Member Stilgoe
12 Apr 2016