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RCW Plumbing & Excavations v Camporeale Holdings Pty Ltd[2017] QCATA 48

RCW Plumbing & Excavations v Camporeale Holdings Pty Ltd[2017] QCATA 48

CITATION:

RCW Plumbing & Excavations v Camporeale Holdings Pty Ltd [2017] QCATA 48

PARTIES:

Raymond Clive Warden t/as RCW Plumbing & Excavations and Coral Warden

(Applicants/Appellants)

 

v

 

Camporeale Holdings Pty Ltd t/as Michael Camporeale Builders

(Respondent)

APPLICATION NUMBER:

APL068-16

MATTER TYPE:

Appeals

HEARING DATE:

14 November 2016

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

Member Burke

DELIVERED ON:

29 March 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The application for leave to appeal is refused.
  2. The appeal is dismissed.
  3. The parties are to file and exchange submissions in relation to the costs of the appeal on or before 21 April 2017.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – Whether decision-maker made errors of fact or mixed law and fact in interpretation of evidence – Errors of Law – Formation of contract

Queensland Civil and Administrative Tribunal Act 2009 s 142(1), s 142(3)(b), s 147(2)

Baulkham Hills Private Hospital v G R Securities (1986) 40 NSWLR 622

Dearman v Dearman (1908) 7 CLR 549

Empirnall Holdings Pty Ltd v Machon Paull Partners (1988) 14 NSWLR 523

Fox v Percy (2003) 214 CLR 118

Lida Build Pty Ltd v Miller and Anor [2011] QCATA 219

Masters v Cameron [1954] 91 CLR 353

Pickering v MacArthur [2005] QCA 294

APPEARANCES:

 

APPELLANTS:

Mr Raymond Warden and Mrs Coral Warden

RESPONDENT:

Mr Valente, Preston Law Solicitors for the Respondent

REASONS FOR DECISION

Nature of the Proceedings and Jurisdiction

  1. [1]
    This is an application pursuant to s 142(1) and s 142(3)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”) for leave to appeal and, if given, appeal against a decision of the Queensland Civil and Administrative Tribunal (“the Tribunal”) in a domestic building dispute.
  2. [2]
    Pursuant to an application filed 19 February 2016, the Appellants sought to appeal on a question of law the reasons of the Tribunal delivered on 19 January 2016 (“the Reasons for the Decision”) on the following grounds:
    1. the Tribunal Member totally disregarded the contract on foot between the parties;
    2. the Tribunal Member erred in disregarding the written contract which had been amended by the Appellants and communicated to the Respondent;
    3. the Tribunal Member ignored the facts in dismissing the Appellants’ claim;
    4. the Respondent committed perjury during evidence in the hearing before the Tribunal Member.
  3. [3]
    At the commencement of the hearing, two matters were raised which were to be dealt with by the Appeal Tribunal.
  4. [4]
    First, the question of legal representation by the Respondent was to be addressed given that the Appellants objected to the Respondent being legally represented. It was noted that the Respondent had applied for legal representation for the hearing before the Tribunal Member but that application did not extend to legal representation on appeal.
  5. [5]
    Given the nature of the proceedings, this Appeal Tribunal ordered that legal representation for both parties would be allowed.
  6. [6]
    The second issue concerned the nature of the appeal in that it seemed that, although the Appellants’ application was presented as an appeal on a question of law only, the issues raised by the Appellants’ submissions related to potential errors of fact or errors of mixed law and fact. Further, the Appellants had sought leave to appeal in Part E of the application.
  7. [7]
    Accordingly, it is necessary for the Appeal Tribunal to consider whether the Appellants are entitled to be granted leave to appeal in relation to issues of fact only or mixed law and fact in addition to any appeal in relation to matters of law only.
  8. [8]
    As a result of these two matters, both parties were given an opportunity to submit further written submissions to ensure that all matters raised by the Appellants could be dealt with by this Appeal Tribunal.

Background

  1. [9]
    The dispute between the Appellants, as subcontractor, and the Respondent, as contractor, arose out of the supply of materials and labour for hydraulic works for 18 houses at Bluewattle Estate, Rasmussen, Townsville (“the subcontract works”).
  2. [10]
    On 15 December 2014, the Appellants provided an updated quotation to the Respondents[1] for the subcontract works.
  3. [11]
    On 17 December 2014, Mr Camporeale, on behalf of the Respondent, and Mr Warden, on behalf of the Appellants, had a discussion regarding the subcontract works and agreed upon a contract price of $141,600.00 including GST.
  4. [12]
    A letter of acceptance dated 17 December 2014 was forwarded by the Respondent to the Appellants stating:

“We are pleased to accept your tender price in relation to this project, commencing on 18th December 2014 in accordance with the terms of this “Letter of Acceptance” and execution of a Subcontract Agreement with both parties.

The authorization is given on the price, terms and conditions on which we require you to carry out the Subcontract Works. The duration of the works will be referenced in the Subcontract Agreement and Works Program.

The Works will be performed in accordance with a Subcontract comprising the following documents:

: The Subcontract including the Subcontract Terms, Schedules and Appendix

: The Specification

: The Scope of Works

: Drawings

: The Construction Program

: MCB Construction Safety Plan (CSP)

 …………………………….

A standard Master Builders Commercial Contract Agreement is being prepared and will be forwarded to you as soon as possible.”

  1. [13]
    Shortly after 17 December 2014, the Respondent sent the subcontract to the Appellants. The subcontract had been executed by the Respondent.
  2. [14]
    On 23 December 2014, Mr Warden contacted Mr Camporeale to discuss the subcontract works and it was agreed that clause 1(a) of the subcontract did not include the installation of gas or solar electricity.
  3. [15]
    It is the Appellants’ case that other matters were discussed including the inclusion of stormwater in clause 1(b) of the subcontract. This part of the conversation is denied by the Respondent.
  4. [16]
    On 8 January 2015, the Appellants returned the subcontract by registered post to the Respondent with amendments to clauses 1(a), 1(b), 5(b), 7(c), 12(d), 24(d), and Annexure A.[2].
  5. [17]
    According to Mr Camporeale, the Respondent did not become aware of the changes to the subcontract until after 4 February 2015, shortly after the first invoices were sent from the Appellants to the Respondent.
  6. [18]
    On 6 February 2015, Mr Camporeale contacted Mr Warden to discuss the changes made by Mr Warden. A series of email exchanges occurred between 6 February 2015 and 9 February 2015 in an attempt to resolve the differences between the parties regarding the terms of the subcontract.
  7. [19]
    On 12 February 2015, the solicitors on behalf of the Respondent forwarded a letter to the Appellants[3] confirming that there was no subcontract in existence between the parties and further stating:
  1. Shortly after 17 December 2014 MCB sent you its standard Subcontract.
  2. You and Michael Camporeale of MCB discussed and agreed to some alterations to the Subcontract. You then returned the subcontract with not only the agreed amendments but also numerous other amendments which were not agreed to by Michael Camporeale. Those amendments constituted a counter offer by you of the terms of the subcontract.
  3. That counter offer was not accepted by MCB and in fact your unauthorised amendments remain in dispute with MCB. To date you have been unable to agree upon the terms of the subcontract.
  4. MCB hereby withdraws from the negotiations on the subcontract. Consequently there is no continuing contract between you and MCB to perform further work.
  5. We note that in order to progress the construction of the houses to meet construction deadlines, you were authorized to enter into the site to commence works pending the parties entering into the subcontract. We note that you entered the site before the subcontract was returned to MCB. Clearly, the performance of that work forms a separate contract to do work as directed by MCB. You have now been paid for that work up to date. MCB does not require you to carry out any further work on site.
  1. [20]
    On 20 February 2015[4], the Appellants forwarded to the Respondent a Notice of Dispute pursuant to clause 25 of the subcontract stating that a dispute existed between the parties and alleging that the Respondent, amongst other things, had wrongfully terminated the subcontract without proper cause.
  2. [21]
    By application dated 7 April 2015, the Appellants sought damages in the sum of $105,692.35 for wrongful termination of the subcontract by the Respondent as follows:
    1. $95,702.35 for loss of profit the Appellants would have otherwise received;
    2. $7,990.00 being the loss incurred as a result of the forced sale of a vehicle;
    3. $2,000.00 for costs incurred for Solicitor’s advice.

The Appellants’ Grounds of Appeal

  1. [22]
    The Appellants’ grounds of appeal are to be understood by reference to the following documents and oral submissions made by Mr Warden on behalf of the Appellants at the hearing on appeal:
    1. the application filed 19 February 2016;
    2. the Appellants’ submissions filed 6 May 2016 (“Appellants’ first submissions”)
    3. the Appellants’ supplementary submissions filed 28 November 2016 (“Appellants’ supplementary submissions”).

Response to Grounds of Appeal and Application for Leave to Appeal

  1. [23]
    The Respondent’s response to the Appellants’ application for leave to appeal and appeal is to be understood by reference to the following documents, in addition to oral submissions by Mr Valente, the solicitor acting on behalf of the Respondent, at the hearing:
    1. the Respondent’s submissions filed 25 May 2016 (“Respondent’s first submissions”); and
    2. the Respondent’s supplementary submissions filed 12 December 2016 (“Respondent’s supplementary submissions”).

Legal Considerations for Leave to Appeal

  1. [24]
    A party may appeal on a question of law without the Appeal Tribunal’s leave, unless the decision falls into one of the limited categories set out in s 142 of the QCAT Act.
  2. [25]
    A party may generally appeal to the Appeal Tribunal on a question of fact, or a question of mixed law and fact, once leave to appeal has been granted.[5] The application for leave to appeal must state the grounds upon which leave to appeal is sought.[6]
  3. [26]
    The distinction between questions of law and fact is not always clear. Courts have not found it easy to formulate a satisfactory test of universal application.[7]
  4. [27]
    The Supreme Court of Canada in Canada (Director of Investigation and Research) v Southam Inc[8] has provided the following concise formula:

Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests.

  1. [28]
    The basis upon which leave to appeal is granted has been considered in many decisions and succinctly summarised in Lida Build Pty Ltd v Miller and Anor [2011] QCATA 219 at [7] to [9]:
  1. [7]Finality in litigation is highly desirable because any further action beyond the hearing can be costly, and unnecessarily burdensome on the parties. [Fox v Percy (2003) 214 CLR 18, 128 per Gleeson CJ, Gummow and Kirby JJ.] A finding of fact will generally not be disturbed on appeal if the evidence before the tribunal supports the inferences drawn and the facts found. [Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355 per Mason CJ.] It is not the Appeal Tribunal’s task to decide where the truth lay as between the competing versions given by parties. [Fox v Percy (2003) 214 CLR 118 at 129 per Gleeson CJ, Gummow and Kirby JJ.]
  2. [8]Whether a decision is based on findings of fact which are open on the available evidence is a question of law. [Kostas v HIA Insurance Services Pty Ltd t/a Home Owners Warranty (2010) 241 CLR 390.]
  3. [9]Leave to appeal will ordinarily only be granted when a question of general importance upon which further argument and a decision of the Appeal Tribunal is to public advantage [Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578 and 580.]; there is a reasonably arguable case that the primary decision-maker made an error [QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.] and there are reasonable prospects that the applicant would be granted orders in its favour [Cachia v Grech [2009] NSWCA 232, [13].]; or to correct a substantial injustice to the applicant caused by error [QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 QD R 41.].
  1. [29]
    The principles the Appeal Tribunal applies when considering an application for leave to appeal are summarized by Keane JA (as His Honour then was) in Pickering v McArthur:

Leave will usually be granted only where an appeal is necessary to correct a substantial injustice to the applicant, and there is a reasonable argument that there is an error to be corrected.[9]

  1. [30]
    An appeal to the Appeal Tribunal on a question of fact or mixed law and fact is by way of rehearing.[10] The Appeal Tribunal must consider whether it is demonstrated by an appellant that there has been some legal, factual, or discretionary error obvious on the record. The Appeal Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[11] An Appellate Tribunal may interfere if the conclusion is contrary to compelling inferences in the case.[12]

Discussion

  1. [31]
    The Appellants’ grounds of appeal and the Appellants’ first submissions provide very little detail in support of the Appellants’ submission that there has been an error of fact or mixed law and fact for which leave to appeal is sought. The Appellants’ further submissions seek to address this part of the application on appeal.
  2. [32]
    Dealing with that part of the appeal, before dealing with the appeal in relation to questions of law only, it is necessary to address the following issues:
    1. Is there a question of general importance of public advantage?
    2. Did the primary decision-maker make an error?
    3. Is there a likelihood the decision would be in the Appellants’ favour?
    4. Has there been a substantial injustice caused by an error?

Is there a question of general importance and public advantage

  1. [33]
    There is no suggestion from either party that the issues canvassed in this appeal are matters of general importance or require a decision due to some matter of public importance.
  2. [34]
    The matters in dispute are personal to the parties and do not relate to any overriding matters of public interest. The matter is primarily a domestic building dispute which relates to allegations by one party that the contract contained certain provisions which entitle that party to a claim for damages in the event that the other party does not proceed with the contract.
  3. [35]
    Neither party has identified any question of general importance upon which further argument should be agitated and from which a decision of the Appeal Tribunal would be to the public advantage.

Did the Primary Decision-maker make an error?

  1. [36]
    Findings of fact by a Tribunal will not usually be disturbed on appeal, particularly if any facts inferred by the Tribunal as forming the basis of its finding are capable of supporting its conclusions and there is evidence capable of supporting any inferences underlying such conclusions.[13]
  2. [37]
    An Appellate Tribunal may interfere if the conclusion at first instance is contrary to compelling inferences which can be drawn from the evidence.
  3. [38]
    In Fox v Percy,[14] the Court stated:

In such circumstances, the appellate court is not relieved of its statutory function by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.

  1. [39]
    The Tribunal Member carefully considered the evidence of Mr Warden and Mr Camporeale and set out the position of each party based on the oral evidence and written submissions provided at the hearing.
  2. [40]
    The Respondent submits that leave should not be granted primarily because the Appellants have failed in their application to state the grounds of appeal for leave.
  3. [41]
    It is necessary, therefore, to look at each of the paragraphs of the Reasons for the Decision alleged by the Appellants to contain an error of fact.
  4. [42]
    As to paragraph [6] of the Reasons for the Decision the Appellants submit that the learned Member erred in relation to a matter of fact. The Appellants simply rely upon Exhibit RCW9 which is attached to the statement of Raymond Clive Warden dated 7 July 2015. This document is evidence of the registered post lodgement receipt in support of the return of the subcontract to the Respondent’s Cairns office.
  5. [43]
    It is unclear the reason for the reliance upon Exhibit RWC9 in assessing any error in paragraph 6. Further, it is noted that the Member has accepted that the subcontract was duly returned by the Appellants on 8 January 2015.[15]  There is no basis for alleging an error of fact on the record.
  6. [44]
    As to paragraph [9] of the Reasons for the Decision the Appellants submit that there is an error of fact. The Tribunal Member has simply set out the Appellants’ position with regard to the quantum of their claim. There is no error of fact on the face of the record.
  7. [45]
    In paragraph [12] of the Reasons for the Decision the Tribunal Member sets out the Respondent’s position. The facts set out in that paragraph are supported by the written statement of evidence provided by Mr Camporeale on behalf of the Respondent and are consistent with the oral evidence provided by Mr Camporeale at the hearing.[16] Paragraph [12] does not consist of any finding by the Member. There is no error of fact on the record.
  8. [46]
    As to paragraphs [20], [21], [22], and [24] of the Reasons for the Decision the Appellants submit that the Tribunal Member erred in failing to accept the Appellants’ claim in relation to the loss suffered from the sale of a vehicle.
  9. [47]
    The Tribunal Member determined that there was no evidence to support the conclusion that the loss on the sale could be attributed to any fault of the Respondent.
  10. [48]
    The transcript references relied upon by the Appellants on appeal[17] assist in identifying the evidence provided by Mr Warden at the hearing. It was open to the Tribunal Member to accept or reject that evidence.
  11. [49]
    The Tribunal Member has correctly concluded that any loss suffered by the Appellants in relation to the undervalue of the vehicle which was sold could not be attributed to the termination of the subcontract. There does not appear to be any error of fact by the Tribunal Member.
  12. [50]
    Paragraphs [46] to [50] of the Tribunal Member’s Reasons address the Member’s acceptance of the circumstances which existed between the parties after the Appellants had returned the amended subcontract to the Respondent on 8 January 2015.
  13. [51]
    The Tribunal Member accepted the evidence of Mr Camporeale, contained in both his written statement and in oral evidence, that he was not aware of any changes to the subcontract until after 4 February 2015. Further, the Member accepted Mr Camporeale’s evidence that upon becoming aware of the amendments, he attempted to contact Mr Warden to discuss the amendments. Further, extensive evidence was provided by both Mr Camporeale and Mr Warden about subsequent conversations and email exchanges relating to the terms of the subcontract.
  14. [52]
    The Tribunal Member accepted the evidence of Mr Camporeale and correctly concluded that the amended terms had not been accepted by the Respondent.
  15. [53]
    The finding of the Tribunal Member was open on the evidence and thus no error of fact is evident on the record.

Likelihood of Decision in Appellant’s Favour

  1. [54]
    It is well settled that an Appellate Tribunal will not interfere with the decision of a primary decision-maker merely because it may have formed a different view had it been in the position of the primary decision-maker. It is essential that there must be demonstrated some error in the decision-maker’s interpretation of the evidence which would then invoke the appellate jurisdiction.
  2. [55]
    Taking into consideration all of the evidence before the learned Member, there does not seem to be any likelihood that the Appeal Tribunal would disturb the findings which were expressed by the Member in the Reasons for the Decision on the basis that there is an error in interpretation of the evidence and any application of the factual evidence to the principles concerning the formation of any subcontract.
  3. [56]
    It would seem from an understanding of all the evidence that there is little likelihood that there would be a finding in favour of the Appellants on appeal.

Correction of Substantial Injustice caused by an Error of Fact

  1. [57]
    Having concluded that there is no error demonstrated to have been evident on the record, it follows that no substantial injustice has been suffered by the Appellants in relation to the claim made by them.

Appeal in relation to Question of Mixed Law and Fact

  1. [58]
    The Appellants’ primary argument is that the learned Tribunal Member erred in determining that there did not exist between the parties a binding contract submitting that the Tribunal Member ignored the Appellants’ evidence in relation to the formation of the subcontract.
  2. [59]
    The well-known principles on the formation of contracts are set out in the decision of the High Court in Masters v Cameron[18]:

Where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be dealt with by a formal contract, the case may belong to any of three cases. It may be one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect. Or, secondly, it may be a case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document. Or, thirdly, the case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract.

In each of the first two cases there is a binding contract: in the first a contract binding the parties at once to perform the agreed terms whether the contemplated formal document comes into existence or not, and to join (if they have so agreed) in settling and executing the formal document; and in the second case a contract binding the parties to join in bringing the formal contract into existence and then to carry it into execution.

  1. [60]
    A fourth class has been subsequently recognised by the courts as set out in Baulkham Hills Private Hospital v G R Securities.[19] That is a situation where the parties intend to be immediately bound but agree to execute a formal agreement at a later date. The distinction between the first and the fourth categories appears to be that in the first the parties propose that their agreed terms are those to which they are to be immediately bound and that those terms will be restated in a fuller or more precise form “but not different in effect”. In Baulkham Hills Private Hospital, by contrast, the critical phrase “a legally binding agreement in principle….until such time as formal contracts were exchanged” was construed as indicating “at the most….an expectation of agreement on further terms” without the first category’s qualification that they would not be “different in effect” from those found in the letters.
  2. [61]
    The learned Tribunal Member concluded, based on the evidence provided, that no contract had been entered into between the parties on the basis that the agreement is one which falls within the third category outlined in Masters v Cameron.[20]
  3. [62]
    The simple question which must be asked is whether the objective intention of the parties shows an intention to be bound. Questions of incompleteness of negotiation are necessarily and importantly subsumed in that factual inquiry.[21] This approach is consistent with that taken by Gleeson CJ in Australian Broadcasting Commission v XIVth Commonwealth Games:[22]

The problem which arises is that [the parties] have exchanged communications which, on the one hand, use the language of agreement but, on the other hand, disclose an expectation that at some future time a document embodying the terms of their contractual arrangement will be brought into existence. Where …….the communications which the parties have exchanged are in writing, the question of their “intention” is prima facie, to be resolved objectively, and as a matter of construction of the relevant documents. Thus, in …..Masters v Cameron….the majority in the High Court said (1954) 91 CLR 353 at 362: ‘The question depends upon the intention disclosed by the language the parties have employed, and no special form of words is essential to be used in order that there shall be no contract binding upon the parties before the execution of their agreement in its ultimate shape.'

  1. [63]
    The Appellants contend that the Tribunal Member erred in relation to both law and fact in relation to the following paragraphs. Whilst the grounds of such errors are not succinctly set out in the Appellants’ submissions, we shall deal with each paragraph below.
  2. [64]
    As to paragraphs [14] and [15] of the Reasons for the Decision the Appellants contend that there is an error of law and fact. and in support of that contention refer to Exhibits RCW7, 18, 19, 21 and 22 to the statement of Mr Warden dated 7 July 2015.[23]
  3. [65]
    In paragraphs [14] and [15], the Tribunal Member purports to set out the position asserted by the Respondent. No findings of fact are made out and no determination is made on the evidence.
  4. [66]
    There is no error evident on the record.
  5. [67]
    As to paragraph [42] of the Reasons for the Decision the Appellants contend that the Tribunal Member has made an error of law and fact.
  6. [68]
    Paragraph [42] sets out in summary the dispute between the parties, namely whether there is a binding contract between the parties.
  7. [69]
    There is no evidence to suggest that the parties did not intend to be bound by the conditions of subcontract and ample evidence that negotiations took place between the parties. Thus, the Tribunal Member’s statement that there was no dispute that the parties entered into negotiations with the intention of being bound by the conditions of the contract is supported by evidence.
  8. [70]
    It is obvious from the Appellants’ application that the essential contention is whether there was a binding contract between the parties. The Tribunal Member simply stated this fact.
  9. [71]
    There is no apparent error of law and fact on the record.
  10. [72]
    Paragraphs [46] to [51] of the Reasons of the Decision contain findings of fact by the Tribunal Member and the application of those facts to determine whether there was a binding subcontract between the parties.
  11. [73]
    The learned Tribunal Member sets out the evidence upon which he has determined the existence or non-existence of a contract. It was open to the Tribunal Member to accept the Respondent’s evidence in relation to whether there existed a binding contract.
  12. [74]
    On the basis of the principles discussed below, there does not appear to be any error of mixed law and fact on the record.

Refusal of Leave to Appeal

  1. [75]
    Based on the matters considered above, there does not appear to be any reason to support the conclusion that leave to appeal should be granted in relation to any alleged errors of fact or errors of mixed law and fact by the Tribunal Member.
  2. [76]
    It follows that leave to appeal is refused.

Appeal in Relation to Question of Law Only

  1. [77]
    The Appellants submit that the Tribunal Member erred in his reasons on a matter of law only by reference to paragraphs [13], [36], [41], and [50] of the Reasons for the Decision.
  2. [78]
    Paragraph [13] of the Reasons for the Decision simply sets out the Respondent’s position in relation to the matters in dispute. There is no application of the law asserted by the Tribunal Member.
  3. [79]
    There is no error of law on the record.
  4. [80]
    Paragraphs [36] to [41] of the Reasons for the Decision relate to the admission of further evidence introduced by the Appellants after the conclusion of the hearing.
  5. [81]
    The material consisted of two documents that were adjudication decisions, both in which the Respondent was a party. They were decisions dated 27 May 2015 and 24 August 2015.
  6. [82]
    Paragraph [36] sets out the requirements of the QCAT Act in ensuring that all hearings are fair to the parties and that all parties are afforded natural justice.
  7. [83]
    The Tribunal Member dealt with the matter of acceptance of the two documents referred above, exercising his discretion as to whether the evidence could be admitted as fresh or new evidence.[24]
  8. [84]
    The Tribunal Member determined not to admit the supplementary material on the following bases:
    1. the supplementary material was provided some weeks after the conclusion of the hearing;
    2. the supplementary material was in existence and available prior to the hearing; and
    3. as the Respondent had no opportunity to respond to the supplementary material, it would be a denial of natural justice to admit the material.
  9. [85]
    The Respondent further contends that the decision of the Tribunal Member in relation to the admission of the supplementary material was correct in that the supplementary material was:
    1. not relevant to the matters in dispute between the parties; and
    2. did not support a “pattern of behaviour” by the Respondent as asserted by the Appellants.
  10. [86]
    The approach taken by the learned Tribunal Member was a consideration of the material as fresh or new evidence.
  11. [87]
    A more appropriate approach would have been to consider the Appellants’ submission of further evidence as an application for leave to re-open evidence in the Appellants’ case.
  12. [88]
    In doing so, the Tribunal Member would have been required to decide whether or not the interests of justice would be better served by allowing or rejecting the application.[25]
  13. [89]
    In EB v CT (No.2)[26], Applegarth J set out the criteria governing the exercise of the discretionary power in an application for re-opening of a party’s case as follows:
  1. [4]In Reid v Brett [2005] VSC 18 at [41] the criteria governing the exercise of the discretionary power to re-open a case to admit further evidence where the hearing has concluded but judgment has not been delivered were said to be as follows:

the further evidence is so material that the interests of justice require its admission;

the further evidence, if accepted, would most probably affect the result of the case;

the further evidence could not by reasonable diligence have been discovered earlier; and

no prejudice would ensue to the other party by reason of the late admission of the further evidence.

  1. [5]Reference by the High Court to prejudice to the other party, and the guiding principle of the interests of justice, require account to be taken of the strain that litigation imposes on personal litigants. The prejudice caused by delay in the delivery of an expected judgment at the end of stressful litigation cannot always be measured in terms of money or cured by an order for costs. The interests of justice are served by finality in litigation, particularly where prolonged litigation imposes a strain on personal litigants.[27]
  1. [90]
    In EB v CT, His Honour found that further evidence was not so material that the interests of justice required its admission and that the further evidence, if accepted, would not probably affect the result of the case.[28]
  2. [91]
    The material which the Appellants sought to introduce was not new evidence, but rather evidence available prior to the hearing before the Tribunal Member. It was open to the Tribunal Member to refuse to allow the admission of such evidence on the basis set out in paragraph [39] of the Reasons for the Decision.
  3. [92]
    In any event, we have formed the view that the late admission of the further evidence would prejudice the Respondent and require evidence to be called and possibly further submissions which would further delay the litigation and undermine the principle of finality in litigation.[29] Further, we have formed the view that the material sought to be introduced was not directly relevant to the present matters in dispute and referred to matters relevant only to the dispute between the parties in the adjudication process.
  4. [93]
    We have formed the view that the criteria set out in Reid v Brett[30] has not been satisfied with the result that the discretion would not in any event be exercised in the Appellants’ favour. There is no error of law evident on the record.
  5. [94]
    Paragraph [50] of the Reasons for the Decision sets out the Tribunal Member’s determination that the amendments to the subcontract were not accepted by the Respondent and that accordingly there was no contract between the parties.
  6. [95]
    The Appellants argue that this paragraph is consistent with an error of law by reference to Exhibits RCW10, RCW23, RCW APL01 and RCW APL02.[31]
  7. [96]
    It is not apparent that there is a question of law which was determined by the Tribunal Member in this paragraph, but rather a question of acceptance of facts and the application of those facts to the law.
  8. [97]
    There are a number of features of the dealings between the parties that point to a mutual intention not to be bound unless and until they executed a formal contract. Most importantly is the offer dated 17 December 2014 which specifically states that a formal contract is to be executed.
  9. [98]
    The Appellants’ case is that the acceptance of the executed agreement in an amended form, although not discussed with the Respondent prior to execution, is in the circumstances deemed to have been communicated by the Appellants and accepted by the Respondent by conduct. The conduct alleged is the silence of the Respondent in allowing the Appellants to commence and continue with the work on site until early February 2015.
  10. [99]
    There can be acceptance by silence if the Appellants can be said to be reasonably entitled to assume that a concluded contract is on foot, and then acts accordingly.[32]
  11. [100]
    Given that the amendments to the subcontract made by the Appellants were forwarded to the Respondent without warning or discussion, we are not satisfied that the Appellants were reasonably entitled to assume acceptance of the amended subcontract by silence. Given the substantial amendments, it was more than likely that the Respondent either would not have accepted the amendments in full or would have required further negotiations in relation to the proposed amendments.
  12. [101]
    Whether a contract has come into existence is to be determined by reference to the intention of the parties disclosed by the language the parties have employed.[33] Where there is an exchange of correspondence, that exchange and the surrounding circumstances may be relevant. The Appellants rely upon the decision of Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 at 525 as supporting the contention that the Respondent’s silence on receipt of the amended subcontract and its conduct thereafter led to the conclusion that the amended subcontract conditions had been accepted by the Respondent.
  13. [102]
    The Respondent’s silence after receipt of the amended subcontract could not in itself be construed as acceptance[34] as some external manifestation of assent to the counter-offer was required. Silence may be relevant to how the later communication was viewed but it does not necessarily purport to be an acceptance of a counter-offer.
  14. [103]
    In Empirnall Holdings, McHugh JA said:

…..where an offeree with a reasonable opportunity to reject the offer of goods or services takes the benefit of them under circumstances which indicate that they were to be paid for in accordance with the offer, it is open to the tribunal of fact to hold that the offer was accepted according to its terms.[35]

  1. [104]
    One further observation of McHugh JA in Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd is relevant:

…it is an error to “suppose that merely because something has been done then there is therefore some contract in existence which has thereby been executed”…….Nevertheless, a contract may be inferred from the acts and conduct of parties as well as or in the absence of their words…The question in this class of case is whether the conduct of the parties, viewed in the light of the surrounding circumstances shows a tacit understanding or agreement. The conduct of the parties, however, must be capable of proving all the essential elements of an express contract...[36]

  1. [105]
    Acceptance of an offer by a party is a question of fact to be determined in all the circumstances. Acceptance or otherwise is to be gauged objectively by reference to the standards of a reasonable person having regard to the parties’ conduct and to correspondence between the parties.
  2. [106]
    We have formed the view that it was open to the Tribunal Member to accept the evidence of Mr Camporeale that there had not been an acceptance of the subcontract in the form and terms varied by the Appellants.
  3. [107]
    Accordingly, there is no error of law only expressed in the record and the appeal is dismissed.

COSTS

  1. [108]
    The Respondent seeks the costs of the appeal on a scale to be determined by the Appeal Tribunal. The Respondent submits that the appropriate scale should be the Magistrates Court scale.
  2. [109]
    The Appellants have not addressed the issue of the costs of the appeal.
  3. [110]
    The parties will be given the opportunity to provide submissions in relation to the question of costs as ordered herein, including a fixed sum for any costs claimed by either party. In the event that submissions are not received by the date ordered herein, the Appeal Tribunal will determine the issue of costs based on the material and submissions delivered to date.

Footnotes

[1]  Attachment RCW2 to the Applicant’s statement dated 7 July 2015.

[2]  Exhibit RCW7 attached to the Applicant’s statement dated 7 July 2016; See also Exhibit RCW9.

[3]  Exhibit RCW27 to the Applicant’s statement dated 7 July 2016.

[4]  Exhibit RCW29 to the Applicant’s statement dated 7 July 2015.

[5]  QCAT Act, s 142(3)(b) .

[6]  Ibid s 143(2)(b).

[7]Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 394.

[8]  [1997] 1 SCR 748 at [35] per Iacobucci J.

[9]  [2005] QCA 294 at [3].

[10]  QCAT Act, s 147(2).

[11] Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.

[12] Chambers v Jobling (1986) 7 NSWLR 1 at 10.

[13] Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.

[14] Fox v Percy (2003) 214 CLR 118 at 128 at [29] per Gleeson CJ, Gummow and Kirby JJ.

[15]  Refer to paragraph [5] of the Reasons.

[16]  Transcript 54 at 5.

[17]  Transcript 1-42; 1-43 and 1-51.

[18]  [1954] 91 CLR 353 at 360-361.

[19]  (1986) 40 NSWLR 622 at 628C-G.

[20]  [1954] 91 CLR 353 at 360-361.

[21] "The Fourth Category of Masters v Cameron” Bret Walker SC (2009) 25 JCL 108 at 117.

[22]  (1988) 18 NSWLR 540 at 548G – 549D.

[23]  Those exhibits are evidence of an exchange of emails and messages between the parties relating to the terms of the subcontract not yet agreed upon between the parties and amendments proposed by both parties.

[24]  Paragraph [38] of the Reasons for the Decision.

[25] Finborough Investments Pty Ltd v Airlie Beach Pty Ltd [1995] Qd R 12 at 16-17; Emaas Pty Ltd v Mobil Oil Australia Ltd [2003] QCA 232 at [19]; Xu v Thurgood [2008] QSC 288 at [58]-[60].

[26]  [2008] QSC 306.

[27]  See also the High Court statements in Smith v New South Wales Bar Association (1992) 176 CLR 256 at 266-267.

[28]  See EB v CT supra at [7] and [8].

[29]  See EB v CT supra at [10].

[30]  [2005] VSC 18 at [41].

[31]  RCW10 – approval of hydraulic services application; RCW23 – correspondence regarding variations to the subcontract.

[32] Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 per McHugh JA (as His Honour then was) at 534.

[33]Masters v Cameron (1954) 91 CLR 353 at 362.

[34] Brogden v Metropolitan Railway Co (1877) 2 App Cas 666 at 692.

[35] Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 per McHugh JA (as His Honour then was) at 535.

[36] Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 97,326.

Close

Editorial Notes

  • Published Case Name:

    Raymond Clive Warden t/as RCW Plumbing & Excavations and Coral Warden v Camporeale Holdings Pty Ltd t/as Michael Camporeale Builders

  • Shortened Case Name:

    RCW Plumbing & Excavations v Camporeale Holdings Pty Ltd

  • MNC:

    [2017] QCATA 48

  • Court:

    QCATA

  • Judge(s):

    Senior Member Brown, Member Burke

  • Date:

    29 Mar 2017

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Australian Broadcasting Commission v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540
1 citation
Jump To
Cite 1 - (1988) 18 NSWLR 540
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
1 citation
Jump To
Cite 1 - (1990) 170 CLR 321
Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622
2 citations
Jump To
Cite 1 - (1986) 40 NSWLR 622
Cite 2 - (1986) 40 NSWLR 622
Brogden v Metropolitan Railway Co (1877) 2 App Cas 666
1 citation
Jump To
Cite 1 - (1877) 2 App Cas 666
Cachia v Grech [2009] NSW CA 232
1 citation
Jump To
Cite 1 - [2009] NSW CA 232
Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748
1 citation
Jump To
Cite 1 - [1997] 1 SCR 748
Chambers v Jobling (1986) 7 NSWLR 1
1 citation
Jump To
Cite 1 - (1986) 7 NSWLR 1
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389
1 citation
Jump To
Cite 1 - (1996) 186 CLR 389
Dearman v Dearman (1908) 7 CLR 549
3 citations
Jump To
Cite 1 - (1908) 7 CLR 549
Cite 2 - (1908) 7 CLR 549
Cite 3 - (1908) 7 CLR 549
EB v CT (No 2) [2008] QSC 306
3 citations
Jump To
Cite 1 - [2008] QSC 306
Cite 2 - [2008] QSC 306
Cite 3 - [2008] QSC 306
Emaaas Pty Ltd v Mobil Oil Australia Ltd [2003] QCA 232
1 citation
Jump To
Cite 1 - [2003] QCA 232
Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523
4 citations
Jump To
Cite 1 - (1988) 14 NSWLR 523
Cite 2 - (1988) 14 NSWLR 523
Cite 3 - (1988) 14 NSWLR 523
Cite 4 - (1988) 14 NSWLR 523
Finborough Investments Pty Ltd v Airlie Beach Pty Ltd [1995] Qd R 12
1 citation
Jump To
Cite 1 - [1995] Qd R 12
Fox v Percy (2003) 214 CLR 118
5 citations
Jump To
Cite 1 - (2003) 214 CLR 118
Cite 2 - (2003) 214 CLR 118
Cite 3 - (2003) 214 CLR 118
Cite 4 - (2003) 214 CLR 118
Cite 5 - (2003) 214 CLR 118
Fox v Percy (2003) 214 CLR 18
1 citation
Jump To
Cite 1 - (2003) 214 CLR 18
Glenwood Properties Pty Ltd v Delmoss Pty Ltd[1986] 2 Qd R 388; [1986] QSC 221
1 citation
Jump To
Cite 1 - [1986] 2 Qd R 388
Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 9 7326
1 citation
Jump To
Cite 1 - (1988) 5 BPR 9 7326
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390
1 citation
Jump To
Cite 1 - (2010) 241 CLR 390
Lida Build Pty Ltd v Miller and Anor [2011] QCATA 219
2 citations
Jump To
Cite 1 - [2011] QCATA 219
Cite 2 - [2011] QCATA 219
Masters v Cameron (1954) 91 C.L.R 353
5 citations
Jump To
Cite 1 - (1954) 91 C.L.R 353
Cite 2 - (1954) 91 C.L.R 353
Cite 3 - (1954) 91 C.L.R 353
Cite 4 - (1954) 91 C.L.R 353
Cite 5 - (1954) 91 C.L.R 353
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd[1989] 2 Qd R 577; [1989] QSCFC 53
1 citation
Jump To
Cite 1 - [1989] 2 Qd R 577
Pickering v McArthur [2005] QCA 294
2 citations
Jump To
Cite 1 - [2005] QCA 294
Cite 2 - [2005] QCA 294
QUYD Pty Ltd v Marvass Pty Ltd[2009] 1 Qd R 41; [2008] QCA 257
2 citations
Jump To
Cite 1 - [2009] 1 Qd R 41
Cite 2 - [2009] 1 Qd R 41
Reid v Brett (2005) VSC 18
2 citations
Jump To
Cite 1 - (2005) VSC 18
Cite 2 - (2005) VSC 18
Smith v New South Wales Bar Association (1992) 176 CLR 256
1 citation
Jump To
Cite 1 - (1992) 176 CLR 256
The Fourth Category of Masters v Cameron" Bret Walker SC (2009) 25 JCL 108
1 citation
Jump To
Cite 1 - (2009) 25 JCL 108
Xu v Thurgood [2008] QSC 288
1 citation
Jump To
Cite 1 - [2008] QSC 288

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Dwyer Corporation Pty Ltd t/as Dwyer Quality Homes v Dunne [2018] QCATA 1122 citations
Queensland Building and Construction Commission v Casey [2017] QCATA 1002 citations
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Yule v Chief Executive, Office of Fair Trading [2018] QCATA 1442 citations
Yule v Chief Executive, Office of Fair Trading [2018] QCATA 1892 citations
1

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