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Hexter v Gatton Earthmoving & Civil Pty Ltd QCATA 107
CIVIL AND ADMINISTRATIVE TRIBUNAL
Hexter v Gatton Earthmoving & Civil Pty Ltd  QCATA 107
ALLAN JAMES HEXTER
GATTON EARTHMOVING & CIVIL PTY LTD
ORIGINATING APPLICATION NO/S:
18 July 2019
11 and 12 July 2019
Dr J R Forbes, Member
The applications for leave to appeal numbered APL327 of 2018 and APL328 of 2018 are dismissed.
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – contract for earthmoving services. – where claim for balance of respondent’s charges – where counterclaim for defective or insufficient work – where agreement partly for fixed amount and partly for sundry services charged per hour – where claim upheld at first instance and counterclaim dismissed – where application for leave to appeal against award of claim and disallowance of counterclaim – whether reasonable prospects of showing appellable error – where purpose and limitations of application for leave considered – where applications dismissed
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 32, 142
Alpine Hardwood (Aust) Pty Ltd v Hardys Pty Ltd  FCA 1876
Anaconda Nickel Ltd v Tarcoola Australia Pty Ltd (2000) 22 WAR 101
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Cudgen Rutile (No 2) Pty Ltd v Chalk  AC 520
Fox v Percy (2003) 214 CLR 118
McAuliffe v Secretary, Department of Social Security (1991) 13 AAR 462
Martin v Osborne (1936) 55 CLR 367
Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Strbak v Newton  NSWCA 202
W, In Re (an infant)  AC 68
Woodside Offshore Petroleum Pty Ltd v Atwood Oceanics Inc  WAR 253http://www.austlii.edu.au/au/cases/cth/HCA/2003/22.html
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
- In June 2017 the appellant Allan James Hexter (`Hexter’) owned a `hobby farm’ at Mt Sylvia, in the vicinity of Gatton. He wanted parts of the property cleared of lantana and other vegetation. He engaged the respondent Gatton Earthmoving & Civil Pty Ltd (`Gatton’) to do that work.
- Operations began on or about 27 June 2017. Originally expected to take four or five days, they were not completed until 8 August 2017.
- The arrangements proceeded amicably until Gatton delivered a final invoice on 27 October 2017. It remains unpaid.
- On 11 July 2018 Gatton commenced these proceedings as a minor civil dispute, alleging that Hexter owes it the sum of $22,741.13.
- On 26 July 2018 Hexter filed a Response, denying liability, and counterclaiming a total of $21,726.25, comprising $7,926.25 paid to Gatton for work allegedly not done, and $13,800 paid to other contractors to remedy alleged defects in Gatton’s performance.
- On 11 October 2018 the Tribunal upheld Gatton’s claim and entered judgment against Hexter in the amount of $22,109. At the same time the Tribunal dismissed Hexter’s counterclaim.
The appeal against Gatton’s award
- Hexter now seeks leave to appeal against the allowance of Gatton’s claim and the dismissal of his counterclaim.
- The proposed grounds of an appeal are set out in the annexure to Part C of the application. Naturally, and helpfully, the submissions in support of the application are substantially longer than the Part C annexure. However, the definition and boundaries of a party’s case are set by its pleadings, particularly when, as here, they are professionally prepared. Accordingly the present scope and consideration of the appellant’s case is governed by the terms of that document.
- The first ground of appeal reads as follows:
The Member failed to make a finding that the legal principles of a contract as the law regards as essential were satisfied, therefore all subsequent findings made by the Member were incorrectly presupposed.
- It is evident from the conduct of the parties that they were in a commercial, contractual relationship. There were acts of performance and payments were made. In an extempore judgment at first instance, in a minor civil claim, it was neither necessary nor reasonably to be expected that the Tribunal would deliver a lecture on elements of contract law.
- Courts of high authority have made similar points in dealing with appeals from busy minor courts and tribunals designed to dispense speedy and relatively uncomplicated justice:
When the law is straightforward and a decision really turns on the facts, reasons may be regarded as adequate although no legal authority is cited.
It is going too far to suggest that in every case a judge must submit the material ... to the most meticulous analysis ... Trial judges [and a fortiori tribunals] must always endeavour to balance their duty to explain with their duty to be brief.
The reasons for the decision are not to be construed finely and minutely with an eye keenly attuned to the perception of error. ... [It is wrong to go] through the words of the decision maker with a fine tooth comb, against the prospect that a verbal slip will be found, warranting the interference of a court of law.
- There is no substance in this ground.
- The second ground of appeal reads:
The Member failed to make a finding that a contract did in fact exist.
- In the reasons of the Tribunal there are references to an `agreement’ (a common synonym, in legal contexts, to `contract’), and the term `contract’ appears twice, at least. Counsel for Hexter conceded that there was an agreement that imposed `obligations’ - `we do accept that the respondent’s implied obligations were to were to pay any validly presented invoices for those works that were requested’. And further: `[Hexter] has complied with all of [his] implied and express obligations in relation to the agreement’.
- The second ground is insubstantial.
- The third ground of appeal is as follows:
The Member failed to make a finding as to the terms of any contract which may have existed.
- If the parties had set out to make arrangements challenging legal characterisation they could scarcely have been more successful. The negotiations have a bucolic quality.
- The witness Lund was authorised to make agreements on behalf of Gatton. Lund’s `quote’ for bulldozing work in this instance is equivocal, to say the least:
It wasn’t a firm quote. It’s a ballpark figure ... that’s how we work up there.
Nobody in the Lockyer Valley [provides a written quote] ... 85-90 per cent of work in the Lockyer Valley, we don’t do written quotes at all.
- There is no written agreement. The only document contemporary with the engagement consists of a few jottings in Lund’s diary:
Look at Allan’s [Hexter’s] job – thirty two hours D6 [bulldozer] – two or four days excavator – fourteen ton excavator.
- Hence the learned Member’s lament about a `vacuum of material’ to reveal `what this agreement could possibly mean’. But he did not shirk the task. Modern precedent supports him.
- It `may readily be accepted that since the 19th century, courts have taken a more lenient view to questions of uncertainty than previously’. In Cudgen Rutile (No 2) Pty Ltd v Chalk the Privy Council held that `in modern times, courts are readier to find an obligation that can be enforced.’ The decision in Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd shows how astute today’s courts are to find that a commercial arrangement is `workable’, to avoid the fiasco of declaring it void for uncertainty. In Alpine Hardwood (Aust) Pty Ltd v Hardys Pty Ltd Weinberg J suggests that a more liberal approach is appropriate when dealing with an agreement not drafted by a lawyer.
- Far be it from the Tribunal to ignore this jurisprudence. Admirably, the Member avoided being a `destroyer of bargains’.
- So flexible was Lund’s `ballpark’ figure of $6,500 - `just an estimation’ - that the Tribunal could well have found that the cost of the bulldozing component was not a fixed price, but merely an approximation based on an hourly rate. However, he accepted Hexter’s evidence that Gatton’s charges were not `completely based on an hourly rate’ and found that the bulldozer charges were fixed at $6,500, with the rest of the work, including excavation, costed at hourly rates. As a matter of legal theory this arrangement might be characterised as a single, open-ended contract, or a fixed price agreement followed by a series of separate hourly-rate engagements, but in either event it is commercially workable. In the words of the Privy Council it is an obligation, or series of obligations, capable of being enforced.
- It is incorrect, then, to assert that the Tribunal failed to make a finding as to the terms of this business transaction. The third ground must be rejected.
- The fourth ground of appeal reads:
The Member failed to make a finding that a breach of contract occurred.
- This allegation relates to the counterclaim rather than to Gatton’s claim. The appeal against dismissal of the counterclaim is considered below.
- The fifth ground of appeal questions the Tribunal’s preference for Gatton’s evidence, insofar as it differs from Hexter’s:
The Member failed to adequately explain his finding that he preferred the evidence of Brendan Daetz and Paul Lund as representatives of Gatton Earthmoving & Civil Pty Ltd.
- The question of adequacy will be considered in a moment. The preference of one case over another is not per se an appellable error. Matters of fact and credit are for the primary decision maker; that is his function. It is not the function of the appeal tribunal to `second guess’ his decision:
Even if the evidence is strongly one way the Appeal Court may not intervene simply because it reaches a different conclusion and even if it regards the conclusion of the trial judge as against the weight of evidence.
Findings of fact will not be disturbed if they have rational support in the evidence, even if another reasonable view is available. Where reasonable minds may differ, a decision is not erroneous, simply because one conclusion has been preferred to another possible view.
- As to adequacy of reasons, the following passage is pertinent:
I find as a matter of fact that I accept the evidence of Daetz. The conversation never took place. It would be most unlikely for a contractor to accept that he’ll work for another 25 days, another half of the contract, ... and agree to accept no payment for it. I can see no explanation ... as to why he would agree to do that. ... [T]his is simply an opportunity that’s been taken not to pay a final invoice.
- In that passage the Member is applying a form of reasoning that is the mainspring of circumstantial evidence, namely, the common sense probabilities of human affairs. In the light of authorities cited above, and with due regard to the exigencies of a busy primary tribunal, this explanation is more than adequate. In the uncontradicted words of Daetz, absent the prospect of further payment, he `would’ve got [his] gear out of there’. He `wouldn’t have ever worked for no money’.
- The sixth ground of appeal alleges that –
The Member failed to adequately explain his finding that each party accepted the invoices were for hourly rates.
- This ground is not sustained.
- The seventh and final ground alleges an error of law, namely reliance upon an irrelevant consideration:
The Member made a finding that [Gatton] should be paid based on the irrelevant consideration of the fairness of [Gatton] working for a further 25 days from the date of the second invoice dated 13 July 2017.
- This ground misconceives the Member’s purpose in referring to an extra 25 days. It is not an expression of sympathy, or a general resort to fairness. Indeed, it is not a reason for the decision in its own right. Rather, - as explained above - it is an application of probability reasoning to Hexter’s claim that on or about 17 July 2017, Daetz told him that payment of an invoice just delivered would be in full and final satisfaction of Gatton’s claims.
- The seventh ground is not a viable ground of appeal.
- Overall, the Tribunal found as a fact that, apart from the bulldozing for $6,500, Hexter repeatedly, and in piecemeal fashion, ordered extra items of work that enlarged his bill well beyond the $10,000 `ballpark’ figure initially foreshadowed by Lund. According to Lund, whose credit was accepted by the Tribunal, Hexter repeated besought Lund to continue, far beyond the few days first envisaged:
[H]e kept saying, “one more day, one more day” ... “Just do one more day for us, and then you’d finish that day, and he’d go, “Do another day for us please, and just keep going ... I done two invoices as part payment to keep going, so he knows as to how the money is going for what he is spending ... 
[E]ach day we kept on getting more and more projects to do there’.
- It is to Hexter’s credit that he does not suggest that the number of hours charged for was inflated, honestly or dishonestly. But the evidence left the Member to infer, as he was entitled reasonably to do, that the siren sound of `extras’ could be heard – the familiar strains of the over-enthusiastic proprietor: `Oh, while you’re here, could you just do this as well’ - regretted in the cold light of a later day. As the Member observed: `[T]he scope of the works ... changed markedly’.
- I discern no reasonably arguable point of appeal against Gatton’s award. Leave to appeal should therefore be refused.
- In response to Gatton’s claim Hexter counter-claimed damages for negligence, breach of statutory warranty and the costs of employing other contractors to do remedial work. The complaint is that `the property was left in a state which was unacceptable’. Specifically, however, `there’s only one area ...up the back of the house’. It is readily understandable that Gatton, faced with Hexter’s adamant refusal to pay the substantial balance of its claim, did not hasten back to apply any final touches that Hexter might demand. There is some evidence that the extremely rocky nature of the terrain controlled the `finish’ that was reasonably achievable.
- Logically, the Tribunal’s allowance of Gatton’s claim excluded the possibility of an award on the counterclaim. And in fact, the counterclaim does not seem to have been very energetically pursued. The transcript, excluding the reasons for judgment, fills almost 96 pages. A close perusal of it shows that sporadic references to the counterclaim occupy rather less than 6 of the 96 pages. The Member’s brief treatment of the counterclaim reflects the paucity of evidence and particulars offered to support it. Quite simply, the Member found that the counterclaim was not sufficiently or persuasively made out. That was his assessment of the relevant facts and credit. No appellable error is involved; it is not for this appeal tribunal to re-try, let alone improve, the case presented at first instance.
- The applications for leave appeal against the award to Gatton, and the disallowance of the counterclaim must each be dismissed.
The applications for leave to appeal numbered APL327 of 2018 and APL328 of 2018 are dismissed.
 Transcript of hearing 11 October 2018 (`T’) page 32 line 39.
 As required by the QCAT Act s 142(3)(a)(i).
Anaconda Nickel Ltd v Tarcoola Australia Pty Ltd (2000) 22 WAR 101.
McAuliffe v Secretary, Department of Social Security (1991) 13 AAR 462 at .
Strbak v Newton  NSWCA 202 at p. 7 per Samuels JA.
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, 291-292
 T page 97 line 33, page 100 line 45.
 T page 100 line 28, page 102 line 11.
 T page 43 lines 21-22, 35-37.
 T page 92 lines 43-44.
 T page 61 (Daetz, director of Gatton).
 T page 12 line 16 (Lund); T page 54 lines 14-16 (Lund).
 T page 49 line 45, page 50 line 2.
 Quoted T page 97 lines 19-31.
 T page 97 lines 33-35.
Woodside Offshore Petroleum Pty Ltd v Atwood Oceanics Inc  WAR 253 at 273 per Kennedy J.
  AC 520 at 526.
 (2000) 22 WAR 101.
  FCA 1876 at .
 T page 54 line 20.
 T page 92 line 34 (Hodgen); T page 80 line 42: `I had to pay an hourly rate’(Hexter).
 T page 81 line 17.
 T page 96 lines 45-46.
Cudgen Rutile (No 2) Pty Ltd v Chalk, above.
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151 per Kirby P.
Fox v Percy (2003) 214 CLR 118 at 125-126.
 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at ; In Re W (an infant)  AC 682 at 700.
 In which Daetz is alleged to have said, prior to the completion of Gatton’s work, that there would be no further charges.
 T page 102 lines 9-16.
Martin v Osborne (1936) 55 CLR 367 at 375 per Dixon J.
 See paragraph , above.
 T page 57 lines 22-23.
 T page 94 line 27 (Daetz).
 T page 92 lines 34-35. See also T 80 line 42 (Hexter) re excavator.
 T page 74 line 32.
 T page 23 lines 11, 28.
 T page 74 lines 20-23,
 T page 95 line 43-44.
 T page 101 line 29.
 T page 101 line 39.
 T page 93 lines 2-3.
 T page 85 line 3 (Hexter).
 T page 53 lines 43-44; page 84 line 44.
- Published Case Name:
Allan James Hexter v Gatton Earthmoving & Civil Pty Ltd
- Shortened Case Name:
Hexter v Gatton Earthmoving & Civil Pty Ltd
 QCATA 107
18 Jul 2019