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Zizza v Greer Fibreglass Pty Ltd[2017] QCATA 38

Zizza v Greer Fibreglass Pty Ltd[2017] QCATA 38

CITATION:

Zizza v Greer Fibreglass Pty Ltd [2017] QCATA 38 

PARTIES:

Domenic Zizza

(Applicant/Appellant)

v

Greer Fibreglass Pty Ltd

(Respondent)

APPLICATION NUMBER:

APL141 -16

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane 

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

6 April 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – APPEAL GENERAL PRINCIPLES – INTERFERENCE WITH FINDINGS OF FACT – FUNCTIONS OF APPELLATE TRIBUNAL – IN GENERAL – where contract for resurfacing of pool – where invoice issued – where owner of pool refused to pay – where tribunal found owner liable to pay – whether error – whether grounds for leave to appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 32, 137, 138, 142(3)(a)(i)

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404

Pickering v McArthur [2005] QCA 294

APPEARANCES:

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

  1. [1]
    Domenic Zizza engaged Greer Fibreglass Pty Ltd to refinish his fibreglass pool. He was not happy with the result, so he refused to pay Greer’s invoice. Greer filed a minor debt claim. The tribunal ordered Mr Zizza pay the invoice plus costs.
  2. [2]
    Mr Zizza 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.[1] 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.[2]
  3. [3]
    Mr Zizza says that his appeal is centred on the quality of Greer’s work and that it was not in accordance with the parties’ verbal agreement. He says Greer did not inform the tribunal that the original quote was amended for a lower amount, ‘making the original claim null and void’. He says the tribunal did not consider the two independent reports highlighting faulty workmanship. He says the tribunal’s decision was based on false and misleading information by Greer. He says Greer did not provide a warranty for the work and there does not appear to be any clear process for remedying defects. He believes Greer has no intention of rectifying any defects.

The amended invoice

  1. [4]
    Mr Zizza filed a copy of a different invoice with his application for leave to appeal. It is the same date, the same invoice number but has a different amount ‘as agreed’. Mr Zizza filed a quantity of material in his response to the claim but he did not file a copy of the amended invoice.
  2. [5]
    The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined.[3] Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Mr Zizza 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?[4]
  3. [6]
    Steve Greer, for Greer, told the tribunal the final invoice was for $5,000.[5] Shortly after that discussion, the tribunal asked Mr Zizza if he wanted to say anything in response to what Mr Greer had said.[6] He did not refer the tribunal to an amended invoice. The tribunal asked Mr Zizza if the contract price was $5,000; he confirmed that it was.[7] Mr Zizza referred the tribunal to the invoice for $5,000 in his submissions.[8]
  4. [7]
    Mr Zizza has not explained why he did not provide the amended invoice to the tribunal. The notation ‘as agreed’ was not explained. The amended invoice should not be accepted. The tribunal was entitled to rely only on the invoice that was before it.

The independent reports

  1. [8]
    The tribunal did not ignore the independent reports. The tribunal explained to Mr Zizza that a claim for faulty workmanship is not a defence to a claim for money owed.[9] The tribunal told Mr Zizza he might have a separate claim for rectification.[10]
  2. [9]
    Because Mr Zizza had not filed a separate claim for rectification, the tribunal’s approach was correct. It was not required to consider the independent reports when making its decision.

False and misleading information

  1. [10]
    Mr Zizza says Greer failed to tell the tribunal it was an agent for Nuplex Industries, the manufacturer of the process it used on Mr Zizza’s pool. Mr Zizza says that Nuplex should have been joined as a party to the proceeding.
  2. [11]
    Greer’s claim was for a minor debt. There was no reason to involve Nuplex in that claim.
  3. [12]
    Mr Zizza says that Greer only applied one coat of gelcoat but the invoice referred to two coats. The tribunal was aware of the discrepancy. It found the parties agreed to one gelcoat and one topcoat.[11] Greer acknowledged that the invoice referred to two gelcoats in error.[12] The tribunal was not misled and was not in error.

Greer did not provide a warranty and there is no clear process for remedying faults

  1. [13]
    The tribunal was not concerned with whether or not Greer provided a warranty. The failure to provide a warranty, if that is true, is not a ground for leave to appeal.
  2. [14]
    The tribunal indicated what Mr Zizza might do if he has a complaint about Greer’s work. The tribunal was not in error.

Mr Zizza believes Greer has no intention to rectify defective work

  1. [15]
    Mr Zizza’s belief is not a relevant consideration. He has not indicated any error by the tribunal. This is not a ground for appeal.
  1. [16]
    There is no reasonably arguable case that the tribunal was in error. Leave to appeal should be refused.

Footnotes

[1]QCAT Act s 142(3)(a)(i).

[2]Pickering v McArthur [2005] QCA 294 at [3].

[3]QCAT Act ss 137 and 138.

[4]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.

[5]Transcript page 1-16, lines 30 – 36.

[6]Transcript page 1-17, lines 32 – 33.

[7]Transcript page 1-18, line 24.

[8]Transcript page 1-20, lines 28 – 46.

[9]Transcript page 1-9, lines 3 – 14.

[10]Transcript page 1-9, lines 18 -19; page 1-29, lines 10 – 12.

[11]Transcript page 1-28, lines 5 – 16.

[12]Transcript page 1-26, lines 36 – 37.

Close

Editorial Notes

  • Published Case Name:

    Domenic Zizza v Greer Fibreglass Pty Ltd

  • Shortened Case Name:

    Zizza v Greer Fibreglass Pty Ltd

  • MNC:

    [2017] QCATA 38

  • Court:

    QCATA

  • Judge(s):

    Senior Member Stilgoe

  • Date:

    06 Apr 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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