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Rodic v Motley QCATA 58
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Rodic v Motley t/as KD Electrical Gold Coast  QCATA 58
KIRA MOTLEY T/AS KD ELECTRICAL GOLD COAST
ORIGINATING APPLICATION NO/S:
26 April 2019
On the papers
Leave to appeal refused
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where electrical contractor engaged to perform work in the construction of a new home – where no formal contract – where stages of contract and payment evidenced in emails – where the parties fell out before completion of all the work – where the appellant refused payment on an invoice for work done to that time on the grounds the respondent had not completed the work of the prior stage – whether the respondent had performed the work – where the Tribunal concluded the work done –whether the applicant could lead additional evidence on the hearing of the appeal – where no explanation offered as to why the evidence was not made available in the proceeding before the Tribunal below
Clarke v Japan Machines (Australia) Pty Ltd  1 Qd R 404
Pickering v McArthur  QCA 294
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
- Ms Rodic was building a house at the Gold Coast. She engaged Ms Motley, who was an electrical contractor, to put in the electrics.
- There was no written contract. They met and there was an exchange of some few emails. Ms Motley’s initial quote given on 8 October 2017 was $24,640 for the job. In an email of 24 October 2017, apparently by which time Ms Motley had commenced work, Ms Motley suggested to Ms Rodic the following schedule of payments, a 25% deposit to cover the cable and materials and labour to install cabling, 50% on completion of the rough-in before the fit-off started and then 25% on final completion.
- Ms Motley said in the email that the 25% deposit would cover the cost of cables and other materials that would thereafter be installed and the 50% payment on completion of the rough-in, before the fit-off started, would principally cover the cost of materials for the fit-off and some of the labour of the rough-in.
- Ms Rodic paid the deposit of $5,000. Ms Motley started running cabling and according to her finished most of the rough-in work.
- On 17 February 2018 Ms Motley advised Ms Rodic by email that she had finished the rough-in that day and asked Ms Rodic to make the next payment of $10,000 to allow her to pay for switches and such the following week. She said in the email, regarding the payment of 50%, that it would pay for the labour of the previous week and most of the materials and cabling put in the last week and the switches, power points and other items for the fit-off. She said if she did not get the full payment she could not order the materials because being such a large amount, a deposit would be required.
- The parties fell into dispute, principally concerning who was responsible for digging a trench and a delay in connecting to mains electricity.
- On 19 February 2018, the parties evidently not being able to agree about various matters, Ms Motley advised she would no longer do the work. On 23 March 2018
Ms Motley invoiced Ms Rodic an outstanding amount claimed due of $2,881.50. The invoice said it was in respect of work done over the period mid November 2017 through to 18 February 2018.
- Ms Rodic refused to pay. Ms Motley commenced an application for minor civil dispute – minor debt in the Tribunal claiming that outstanding sum. The matter was heard before an Adjudicator on 7 August 2018 and the Adjudicator ordered Ms Rodic pay the full claim to Ms Motley plus allowable costs totalling $3,065.70.
- Ms Rodic seeks leave to appeal that decision.
- Given this is an appeal from a decision made in the Tribunal’s Minor Civil Dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.
- Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected. There may be other relevant considerations, but these are primary.
- Ms Rodic says the Adjudicator incorrectly allowed Ms Motley more money than agreed for the rough-in stage which amount was fixed at $5,000.
- Ms Rodic presented her case before the learned Adjudicator very poorly. A perusal of the transcript of the hearing shows she was generally disruptive, disorganised and unclear in her submissions. There were many recorded instances where she spoke over the Adjudicator when the learned Adjudicator was asking her relevant questions and she either failed to understand the relevant issues identified by the learned Adjudicator that needed to be addressed or chose to ignore them.
- The response she filed to the original minor civil dispute – minor debt application was confusing and hard to understand. It ranged from claiming back the deposit of $5,000 paid Ms Motley and the additional costs of engaging another electrical contractor to finish the work (which amounts could not be claimed because there is no counter application permitted in response to a minor debt claim) to complaints about being left without electricity for 3 months because of the negligence of Ms Motley.
- At the hearing Ms Motley gave evidence that she had finished the rough-in stage of the work and there were only a few matters outstanding concerning air-conditioning and plumbing, neither of which could be done until their positioning was fixed. Before the fit-off stage could commence the parties relationship broke down.
- Ms Motley said Ms Rodic blamed her for delay in getting the power on but that was due to a two-month delay by Energex, half of which was attributable to rain. The trench caused a delay of one month but that was not in the scope of her work. She said Ms Rodic had agreed to engage labour to dig the trench. As soon as the trench was dug by the builder she put cabling in and applied to Energex for connection.
- Ms Rodic handed up a document she said was from another electrical contractor. It was not on letterhead and gave no details of the author’s qualifications as an electrical contractor. The learned Adjudicator told Ms Rodic that she placed limited weight on the document.
- The Adjudicator suggested the letter set out work Ms Motley had not performed because she had left the job and they were things she was not charging for in any case. Ms Rodic’s response to that was confusing:
Adjudicator Mewing: No. What you’re telling me – and these are things – these are things that she didn’t do because she left the job. She is not charging you for those things.
Ms Rodic: No, she does actually.
Adjudicator Mewing: Well…
Ms Rodic: Because I do the – I did exactly [indistinct] and she does.
Adjudicator Mewing: Okay. And show me how they’re – there is overlap.
Ms Rodic: Exactly. I was going to tell you that.
Adjudicator Mewing: Show me how there’s overlap.
Ms Rodic: Exactly. She does. On the number one, 700 metres that I have been charged, 560 from Mesic. She claims that she charged me 900 and she didn’t complete that because I had to pay man 560 to complete that part. Another one: 100 metre of one point whatever.
Adjudicator Mewing: Ms Rodic…
Ms Rodic: Yeah?
Adjudicator Mewing: … In what rooms did she not complete it?
Ms Rodic: Because I – she didn’t have enough – she didn’t have enough – she didn’t put enough cables.
Adjudicator Mewing: In which rooms was the cable missing?
Ms Rodic: Sorry, I can’t give information in which rooms because we never think about the rooms. We are talking about the materials.
Adjudicator Mewing: … surely, there must have been some evidence about which rooms it needed to go in.
Ms Rodic: No, it’s no evidence in the sense of the rooms. But it’s the evidence…
Adjudicator Mewing: Well, I have no proof that it was missing.
Ms Rodic: Yeah, we didn’t take the photos because we didn’t know that she will charge for something that she didn’t do. Unfortunately I don’t have the photos.
Adjudicator Mewing: Well…
Ms Rodic: But I have proof of someone who come after her who is an electrician. If you question his identity and his dignity then it’s – okay. If you question that, then I’ll leave to you because he put his licence on a table with [indistinct
Adjudicator Mewing: He hasn’t because his licence number isn’t on the document.
- Ms Motley gave evidence that the items making up the outstanding amount of $2,881.50 were either supplied, left at the premises or fitted to the premises when she left. There were the said matters outstanding of connecting a cooktop to an island bench and an air conditioner, but they would have been done at the fit-off stage. Ms Motley said she was out of pocket for the things claimed on the invoice to the amount of $2,881.50. She had done all the rough-in with the exception of the minor matters of cabling for the air-conditioning and plumbing.
- The learned Adjudicator accepted Ms Motley’s evidence. She concluded that
Ms Motley had completed the rough-in save for insignificant items and was therefore entitled to claim the next $10,000 payment the parties had agreed would be paid at that stage. Indeed there is an email from Ms Motley to Ms Rodic of 17 February 2018 advising that the rough-in had been completed that day and asking for the next payment.
- Much of the next payment of $10,000 was intended to be used to buy fit-out items for the next stage of the job. But part of the $10,000 was intended to cover some outstanding costs from the rough-in work. That was referred to in the email of
24 October 2017 where Ms Motley proposed and it seems clear Ms Rodic accepted:
50% on completion of the ruff in, [sic] before fit off starts – this is to cover the materials for the fit off mainly (the switches and fans, etc are the most expensive part of the job) and some of the labour of the ruff in [sic]
- It is clear the cost of Ms Motley’s work finishing the rough-in was always intended to exceed the deposit of $5,000. There is no suggestion in the emails between the parties that Ms Motley would not be entitled to charge for her work unless she completed all the contract. Indeed the terms of the arrangement, meagre as they are and evidenced only by the few emails referred to, show she was entitled to claim an amount for the rough-in work from the second payment of $10,000, which fell due when
Ms Motley advised that rough-in had been completed in her email of 17 February 2018.
- The learned Adjudicator was not persuaded by Ms Rodic’s defence. She found
Ms Motley’s photographic evidence showing extensive cabling work done on site persuasive. She concluded the rough-in work had principally been done and
Ms Motley was entitled to be paid the amount claimed of $2,881.50 from the next payment of $10,000 which she found due and which she found to be a reasonable amount.
- The learned Adjudicator was entitled to accept Ms Motley’s evidence. The learned Adjudicator was entitled to rely on the photographic evidence of extensive cabling work done. As stated, the case presented by Ms Rodic was confusing and more than vague. The learned Adjudicator was entitled to give little (or no) weight to the half page of writing tendered by Ms Rodic purporting to be a calculation of the costs of completing the electrical work by another licensed electrical contractor.
- With her application for leave to appeal or appeal, Ms Rodic appended a document which had not made available to the learned Adjudicator at the hearing. It purports to be a quote by Mesic Electrical Contractor for the remainder of the job. It is dated
24 July 2017. Given the work the subject of the dispute was not started until October 2017, one wonders when it was created. Even if the date was intended to be
24 July 2018, that preceded the hearing before the learned Adjudicator yet it was not led in evidence at that hearing.
- Ms Rodic requires leave to adduce new evidence at the hearing of the appeal not presented in the proceeding below. In respect of receiving additional evidence at appeal the following statement of principle applies:
Three conditions must be fulfilled. “First it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive: third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.”
- Ms Rodic offers no explanation why the document could not have been made available with the exercise of reasonable diligence for use in the hearing before the learned Adjudicator. An application for leave to appeal is not, and should not be, an attempt to shore up deficiencies in a party’s case at the initial hearing.
- In the circumstances, leave to rely upon the document as fresh evidence for consideration in the appeal is refused. The application for leave to appeal must proceed on the basis of the evidence available before the learned Adjudicator.
- On the basis explained above, Ms Rodic has small prospect of success on appeal. There is no reasonable argument that there is an error to be corrected in the decision of the learned Adjudicator. The application for leave to appeal is therefore refused.
 QCAT Act, s 142(3)(a)(i).
 Pickering v McArthur  QCA 294, .
 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 48(3).
 Transcript (‘T’) 1-4, Line (‘L’) 17 to T 1-5 Line 15.
 Ibid T1-7, L14-33.
 Ibid T1-10, L13.
 Ibid T1-22, L33.
 T1-23, L12-46.
 Ibid T1-24, L3 -38.
 Clarke v Japan Machines (Australia) Pty Ltd  1 Qd R 404, 408.
- Published Case Name:
Renata Rodic v Kira Motley t/as KD Electrical Gold Coast
- Shortened Case Name:
Rodic v Motley
 QCATA 58
26 Apr 2019