SGB Facility Services Pty Ltd v Zoo Agency Pty Ltd
[2021] QCATA 77
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- Unreported Judgment
- SGB Facility Services Pty Ltd v Zoo Agency Pty Ltd[2021] QCATA 77
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SGB Facility Services Pty Ltd v Zoo Agency Pty Ltd[2021] QCATA 77
SGB Facility Services Pty Ltd v Zoo Agency Pty Ltd[2021] QCATA 77
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | SGB Facility Services Pty Ltd & Anor v Zoo Agency Pty Ltd [2021] QCATA 77 |
PARTIES: | sgb facility services pty ltd AND sgb construction & fitout pty ltd (applicants) |
v | |
zoo agency pty ltd (respondent) | |
APPLICATION NO: | APL241-20 |
MATTER TYPE: | Other minor civil dispute matters |
DELIVERED ON: | 1 June 2021 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Dr J R Forbes |
ORDERS: | The application for leave to appeal is dismissed. |
CATCHWORDS: | APPEAL – APPLICATION FOR LEAVE TO APPEAL – minor civil claim – action for debt – agreement to manufacture advertising signage – where work part performed – where order cancelled – where manufacturer claimed payment for work done – where no payment made – whether building legislation applies – whether action in form of minor civil dispute appropriate – whether sufficient particulars of claim supplied – whether award affected by appellable error – where primary decision upheld – where limitations of application for leave to appeal considered Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 32, s 61 Queensland Building and Construction Commission Act 1991 (Qld) s 77 Queensland Building and Construction Commission Regulation 2018 Schedule 1 item 24 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Bein v Brooks [2000] QCAT 5 Bennett v Australian Capital Territory (No 2) [2018] ACTSC 245 British Airways Pension Trustees Ltd v Sir Robert McAlpine & Sons Ltd (1995) 72 BLR 26 Coulton v Holcombe (1986) 162 CLR 1 Fox v Percy (2003) 214 CLR 118 Fregnan v Stanizo [2016] NSWCA 264 Greg Black Constructions Pty Ltd v Brodie & Anor [2011] QCAT 671 JM v QFG and KG [2000] 1 Qd R 373 Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611 Redding v Simmons [2016] QCATA 100 Tinney v Alllen [2019] QCATA 116 W (an infant, In re [1971] AC 682) [1971] AC 682 Waterford PPG Pty Ltd v Civil Constructors (Aust) Pty Ltd [2020] QSC 8 |
APPEARANCES & REPRESENTATION: | 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
- [1]This dispute is about payment for advertising signs designed for display at the Goodna Marketplace, near Brisbane.
- [2]The applicant/appellants (`SGB’) are members of a group of construction companies based in Sydney, and carrying on the business of `retail centre refurbishment’.
- [3]The respondent (`Zoo’) is a manufacturer of signage.
Commencement and early termination
- [4]Negotiations with Zoo, on behalf of SGB, were conducted mainly by Mr Brodie Ireland (`Ireland’). At all material times Ireland was employed by SGB Construction and Fitout Pty Ltd, the judgment debtor.[1] Hereinafter all references to SGB will be to the latter company, unless otherwise stated.
- [5]The tribunal had no difficulty in finding a relevant contractual nexus between SGB and Zoo for the design, manufacture and installation of signage for SGB’s client, Goodna Marketplace.[2] There is ample evidence to support that conclusion.
- [6]The full price of Zoo’s work was to be $52,223.50.[3] However, on 22 November 2019 Ireland (for SGB) wrote to Zoo as follows:
Do not proceed with this order. The client has decided to go with the old signs. ... [T]hey changed their minds.[4]
- [7]Thereupon Zoo ceased work on the project, claiming just $10,208 of the contract price, namely $52,223.50, for work done and materials supplied to 22 November 2019. As a matter of commercial goodwill[5] Zoo claimed no damages:
Just for [what] we’ve incurred, not for the deposit, not for anything else.[6]
I’m not asking for anything more than what I’m out of pocket.[7]
I only said just pay for what has been done and then ... I’ll just take the rest of it on the chin.[8]
- [8]SGB has not paid the alleged debt to Zoo, wholly or in part.
SGB’s defences
(i) Nature of this case
- [9]SGB asserts that the proceedings were incorrectly commenced as a Minor Civil Claim when they should have been categorised as a minor commercial building dispute.[9] Insofar as this is a point of procedure, it has no substance. Section 61 of the QCAT Act confers a wide power to vary or dispense with procedural requirements. If this is, in fact, a building case, any necessary amendment of Zoo’s original application could readily be made.
- [10]
- [11]If so, SGB’s submission that section 77(2) of the QBCC Act applies is a fatal objection.
- [12]Section 77(2) – a mandatory provision[12] - states that a person may not pursue a building dispute in this Tribunal unless and until there is compliance with a process established by the Commission to attempt a resolution of the dispute. It is common ground that no such step has been taken in this case.
- [13]But is this indeed a building case? The Adjudicator held that it is not.[13]
(ii) A building case?
- [14]Common sense and common parlance suggest that it would be odd to treat the manufacture of an advertising sign as building work, and that intuition is supported by regulations under the QBCC Act. These spell out several exceptions to the Act’s concept of `building work’. They are to be construed broadly[14], so as to give due effect to the legislative intention to exclude from the complex QBCC Act certain activities that might otherwise and arguably be seen as building work.
- [15]In particular, the regulations provide that `Construction, maintenance or repair of a sign that does not have a supporting base is not subject to that Act.[15]
- [16]Clearly a `supporting base’ already existed here, and, in the event, Goodna Market decided to leave it and the old signage in place.
- [17]In an email to SBG on 4 December 2019 Zoo’s task is described as `fabrication, lasercutting, moulding of letters, supply of material and 3 days’ labour’. There is no mention of supporting structures. An SBG `Group Payment Schedule’ dated 9 January 2020 refers to `Production of Goodna Market Place lettering’. Photographs in evidence are consistent with that description. Other correspondence tendered speaks of `signage’ without any suggestion of support-building.[16] `You’re signwriters’ declared an SBG director to Zoo in the course of the hearing.[17] The subject decision describes Zoo as a `signwriting company’.[18]
- [18]I am satisfied that the Adjudicator was correct in dismissing SBG’s submissions with respect to the QBCC Act.
- [19]Similarly the Adjudicator was entitled to set aside SBG’s vague and sweeping appeals to natural justice, correctly pointing out that this elusive duty rests upon adjudicators, not upon parties.[19]
(iii) Insufficient particulars?
- [20]Apart from the `building work’ submission (above), SBG submitted that Zoo has supplied insufficient particulars of its moderate claim.
- [21]In lawyers’ experience it is not unknown for alleged debtors to fend off the evil day with ingenuous demands for further particulars, and further and better particulars. If further particulars were really needed, an interim application would have required SBG to specify the desired information with precision, and to satisfy the Tribunal that it was essential for defence of Zoo’s claim. In a Tribunal directed by the legislature to proceed with expedition and freedom from technicality, demands for further particulars in a relatively uncomplicated case call for close scrutiny. Indeed, a similar view is now expressed in superior courts:
Contests over the provision of further and better particulars are a sport the popularity of which amongst the judiciary has substantially declined in recent years. ... [I]n many cases lawyers for parties pointlessly create further disputes by making requests for particulars which are framed without reference to their proper and limited scope.[20]
A high degree of specificity in allegations is not necessarily warranted ... The `just quick and cheap resolution of the real issues ...’ is not advanced by permitting defendants to seek unnecessarily detailed particulars.[21]
Particulars are not a game to be played at the expense of the litigants, nor [are they] an end in themselves, but ... to give each party a fair hearing.[22]
- [22]The learned Adjudicator considered and dismissed the `particulars defence’ in these terms:
Mr Ireland was aware that the work was underway ... by the tone of his email on Wednesday 20 November that work has been done on the job, so he can’t say the work shouldn’t have started. ... According to Mr Hunter [for Zoo], work had still continued throughout that Wednesday. ... [T]hey say it’s not particularised, but I note that it is set out in an email dated 22 November. Mr Miller [a designer employed by Zoo] writes ... `As the signage was needed urgently, we needed to gain assistance [from a] company we work closely with. ... [This is what we’ve done: We’ve fabricated lettering. We’ve provided seven sheets of opal. We’ve provided three sheets of satin black, a sheet of tin, three days’ of [labour] and a day for the laser pre-cutting. ... eight hours per day, three days’ labour for two guys.’[23]
- [23]The Adjudicator added:
I can’t see how Zoo Agency could have been any more particular than that ... Accordingly I find that the application seeking payment for the work done, in my view, well founded on the evidence before me.
- [24]On the evidence, the decisions to reject the several defences, and to accept Zoo’s case, were matters well within the discretion of the Adjudicator, as the appointed judge of fact and credit.
Limits of a leave application
- [25]The purpose of this application is simply to search for possible appellate error. It is not a rehearing on the merits, nor an opportunity to `second guess’ the findings of the primary tribunal. The trial is not merely a `preliminary skirmish’.[24] At law, the appeal Tribunal is limited to the question whether there are reasonable prospects of demonstrating appellable error that caused substantial justice.
- [26]This is precisely the sort of case that the legislature wishes to be resolved speedily, economically and with finality.[25] The very point of the `leave to appeal’ hurdle is to curb attempts to misuse appeals as retrials or devices of delay. It is not appellable error to prefer one version of the facts to another, or to give more weight to the evidence of `A’ than to `B’. Findings of fact will not normally be disturbed if they have rational, albeit debateable support in the evidence, even where another reasonable view is available.[26] Where reasonable minds may differ, a decision is not erroneous merely because one solution has been preferred to another possible view.[27]
If there is evidence ... no error of law occurs simply because the judge prefers one version to another. ... That is his function. ... Even if the evidence is strongly one way the appeal court may not intervene simply because it reaches a different conclusion.[28]
It appears to me that a factual conclusion cannot be treated as infected by legal error unless it is clear, beyond serious argument, that it is wrong. That this [appeal] court merely disagrees with a factual view ... does not show that a decision based upon it is legally erroneous.[29]
- [27]I am unable to discern any appellable error in the subject decision. It follows that leave must be refused.
ORDER
The application for leave to appeal is refused.
Footnotes
[1]Transcript of hearing 23 June 2020 (`T’) page 46 lines 2 and 24, page 51 lines 10-12.
[2]T page 5 lines 23-24, page 19 line 28, page 30 line 30, page 30 line 30, page 49 line 5 (acceptance), page 25 line 28 (terms sufficiently clear), page 30 lines 29-31, page 50 lines 7-23 (sufficient particularity), page 51, lines 1-2 (agreement found).
[3]T page 12 line 32 (Hunter).
[4]T page 11 lines 24-27.
[5]T 40 line 31 (`I wanted to keep the relationship’.)
[6] T page 13 lines 11-12.
[7]T page 39 lines 23-24.
[8]T page 40 lines 31-32.
[9]Application for leave filed 5 August 2020, annexure page 5.
[10]Application for leave filed 5 August 2020, annexure pages 4-6.
[11]T page 43 lines 5ff.
[12] Redding v Simmons [2016] QCATA 100 at [24]; Tinney v Alllen [2019] QCATA 116 at [8]; Bein v Brooks [2000] QCAT 5 at [7].
[13]T page 43 lines 21-22.
[14] Waterford PPG Pty Ltd v Civil Constructors (Aust) Pty Ltd [2020] QSC 8.
[15] Queensland Building and Construction Commission Regulation 2018 Schedule 1 item 24.
[16]See eg Miller to Ireland 15 and 21 November 2019.
[17]T page 34 line 40 (Badawi to Hunter).
[18]T page 50 line 31.
[19]T page 15 lines 24-29.
[20] Bennett v Australian Capital Territory (No 2) [2018] ACTSC 245 at [1].
[21] Fregnan v Stanizo [2016] NSWCA 264 at [15].
[22] British Airways Pension Trustees Ltd v Sir Robert McAlpine & Sons Ltd (1995) 72 BLR 26 (Ct of Appeal England).
[23]T page 49 line 43-page 50 line 20.
[24] Coulton v Holcombe (1986) 162 CLR 1 at 7 (Gibbs CJ, Wilson, Brennan and Dawson JJ).
[25]QCAT Act s 3(b).
[26] Fox v Percy (2003) 214 CLR 118 at 125-126.
[27] In re W (an infant) [1971] AC 682 at 700; Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611 at [131].
[28] Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151 per Kirby P.
[29] JM v QFG and KG [2000] 1 Qd R 373 at 391 per Pincus JA.