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  4. Uri Drozdoff t/as Creative Concrete & Cutting Pty Ltd v Urban X (Qld) Pty Ltd - [2021] QCATA 79

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Uri Drozdoff t/as Creative Concrete & Cutting Pty Ltd v Urban X (Qld) Pty Ltd[2021] QCATA 79

Uri Drozdoff t/as Creative Concrete & Cutting Pty Ltd v Urban X (Qld) Pty Ltd[2021] QCATA 79

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Uri Drozdoff t/as Creative Concrete & Cutting Pty Ltd v Urban X (Qld) Pty Ltd [2021] QCATA 79

PARTIES:

Uri Drozdoff t/as creative concrete & cutting Pty Ltd

(applicant/appellant)

v

Urban x (Qld) Pty Ltd

(respondent)

APPLICATION NO/S:

APL147-20

ORIGINATING

APPLICATION NO/S:

MCDO 906/19 Southport

MATTER TYPE:

Appeals

DELIVERED ON:

10 June 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

A/Member Bertelsen

ORDERS:

  1. Leave to appeal is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where applicant sought recovery of loss due to damage alleged to have been caused during period of rental hire – where an Adjudicator ordered insufficient proof of damage caused by the respondent – whether lack of consideration of applicant’s evidence and failure to provide adequate reasons – whether fresh evidence available at time would impact result of initial hearing – where fresh evidence rejected – where grounds of appeal insufficient to alter initial findings

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3)(a)(i)

Pickering v McArthur [2005] QCA 294

Key Promotional Products Pty Ltd v Carr [2019] QCATA 46

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

Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226

APPEARANCES &

REPRESENTATION:

 

Applicant:

Self represented

Respondent:

Self represented

 

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. [1]
    On 10 October 2019 the original applicant and here the appellant, Creative Concrete and Cutting Pty Ltd, dry hired to Urban X Qld Pty Ltd a 2012 model Vermeer BC 1500 woodchipper.  It was initially to be for one day usage to mulch existing trees and vegetation placed in a pile at Alexandra Hills State School.
  2. [2]
    The woodchipper was collected early in the day, 10 October 2019.  As it transpired the woodchipper was operated for two days – 10 October 2019 10:30am to 5:30pm and 11 October 2019 8am to 5:30pm – being returned late in the day 11 October 2019.
  3. [3]
    The dry hire was evidenced by a dry hire rental agreement including details of parties to the agreement, schedule of hire details and terms and conditions of hire. 
  4. [4]
    Shortly after return on 11 October 2019 Mr Drozdoff, director of Creative Concreting & Cutting, said he observed damage to the woodchipper – excessively worn blades and he became aware of a damaged cutter drum shaft and cutter drum bearings.  He considered this damage due to usage the woodchipper was neither designed for nor capable of.  In particular he surmised that the blades were suffering from excessive wear and tear due to sand and gravel thus bending the blades and in turn placing undue pressure on the drive shaft and bearings.  Mr Drozdoff said that led to the claim for replacement blades, parts from Vermeer, labour costs, 10 days’ woodchipper downtime and transport costs.  Mr Seymour speaking for Urban X in asserting the woodchipper was returned in working order said any damage was likely to be:
    1. (a)
      Latent condition caused prior;
    2. (b)
      Result of fair wear and tear;
    3. (c)
      The woodchipper was not properly maintained or serviced.
  5. [5]
    The Adjudicator at first instance found there was nothing extra ordinary about Urban X’s use of the woodchipper; that the operation and maintenance were carried out in accordance with Creative Concrete & Cutting’s instructions; that after two days of use it would reasonably be expected that the blades would be blunt and worn especially since they were not sharpened before hire and that the woodchipper would run a bit roughly. 
  6. [6]
    The Adjudicator considered Creative Concrete & Cutting had not provided sufficient evidence to establish that Urban X misused the woodchipper or that it caused actual damage to the woodchipper, finding that the post hire condition of the woodchipper was more consistent with ordinary use by the respondent Urban X than any type of misuse and finally that the post hire condition of the woodchipper was the result of fair wear and tear and that there was no breach of the contract of hire and therefore no liability for the damages claimed by Creative Concrete & Cutting. 
  7. [7]
    Creative Concrete & Cutting 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.[1]
  8. [8]
    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 reasonable argument that there is an error to be corrected.[2]
  9. [9]
    The application for leave to appeal or appeal filed 5 June 2020 sets out six grounds of appeal.  Subsequently on 6 October 2020 Creative Concrete & Cutting filed a one page document titled “Fresh evidence” together with a four page document titled “Submissions for appeal to be granted” together with some 30 pages of annexures, that latter four page document being an expanded version of the six grounds of appeal.
  10. [10]
    The Tribunal accepted the fresh evidence document and the expanded submissions as an application for leave to rely on the fresh evidence included in same.  Opportunity was afforded to Urban X to make submissions in response to the application for leave to rely on fresh evidence but no response submissions were filed although Urban X had responded previously to the six initial appeal grounds as set out in the application for leave to appeal or appeal filed 5 June 2020.

Should Creative Concrete & Cutting be given leave to rely on the fresh evidence document and expanded submissions?

  1. [11]
    Creative Concrete & Cutting filed the following fresh evidence with its appeal.
    1. (a)
      A Brandon’s Diesel Fitting tax invoice dated 12 November 2019 – no particulars recorded.
    2. (b)
      A Sunshine Coast Chipper Service invoice dated 22 October 2019 for $1,474.
    3. (c)
      Certificate III Tafe qualification for Brandon Leigh Grant.
    4. (d)
      Opinion from All Mesh Services (Qld) Pty Ltd by Chris McMillan dated 1 October 2020 regarding state of chipper blades.
    5. (e)
      Two photos of instructions for use of the woodchipper.
    6. (f)
      Austech Saw & Tooling Pty Ltd – general comments about blade sharpening.
    7. (g)
      A ‘to whom it may concern’ statement from Sunshine Coast Chipper Service dated 17 October 2019 regarding necessity to replace cutter drive shaft and cutter drive bearings.
    8. (h)
      Three tax invoices from Vermeer Equipment Holdings Pty Ltd dated 18 June 2019, 27 June 2019 and 5 July 2019 for what appears to be woodchipper parts. 
    9. (i)
      Five tax invoices from Vermeer Equipment Holdings Pty Ltd dated 14 October 2019, 18 October 2019, 28 October 2019, 25 November 2019 and 19 December 2019 for what appears to be woodchipper parts.
  2. [12]
    As stated in Key Promotional Products Pty Ltd v Carr[3] the Appeal Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined.  Ordinarily an applicant for leave to adduce fresh evidence must satisfy three tests:[4]
    1. (a)
      Could the parties have obtained the evidence with reasonable diligence for use at the trial?
    2. (b)
      If allowed, would the evidence probably have an important impact on the result of the case?
    3. (c)
      Is the evidence credible?
  3. [13]
    There is no explanation as to why these documents were not tendered at the hearing other than to say because it was thought that such were not relevant.
  4. [14]
    Following the appeal determination in Key, here Creative Concrete & Cutting cannot seek to introduce rebuttal evidence after the Tribunal has delivered its findings at the hearing.  The onus was always on Creative Concrete & Cutting to present its case and bring all relevant material to the hearing.  Creative Concrete & Cutting had an obligation to act in its own best interests:[5]

The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests.  QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources,

“…the public as a whole, not merely the parties to the proceedings”.

Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.

  1. [15]
    Moreover the Appeal Tribunal is not satisfied that the fresh evidence documents would have any impact on the result of the case.  It consists of a number of tax invoices before and after the event, some opinions and comments after the event, a couple of photos of instructions, a Tafe qualification of one person giving an opinion.  There is nothing in this material that addresses or impacts the findings of the Adjudicator at first instance.
  2. [16]
    Even if it was accepted that the fresh evidence documents allowed for a possible alternative inference, that is not sufficient.  Attempting to explain away the Tribunal’s findings with a possible alternative inference does not demonstrate error by the Tribunal. 
  3. [17]
    The Tribunal in support of its findings relied on the sworn oral evidence of the parties.  It is implicit that the Tribunal preferred Mr Seymour’s evidence over that of Mr Drozdoff.  The Tribunal referred to the evidence which it was entitled to weigh to support its ultimate findings. 
  4. [18]
    A decision cannot be categorised as erroneous simply because the Tribunal preferred one conclusion over another nor is it an error to prefer one version of events over another.  The Tribunal declines to accept the application for leave to rely upon the fresh evidence enclosed with Creative Concrete & Cutting’s submissions.

The Appellant’s original six grounds of appeal

Ground one: The learned Adjudicator erred in failing to have regard to the evidence contained in the post hire report of Brandon’s Diesel Fittings in deciding that there is no documentary record as to the condition of the chipper or parts thereof prior to the hire.

  1. [19]
    That appeal ground appears to refer to an inspection of 12 October 2019.  Urban X submitted that the record of inspection was not a documentary record of the condition of the chipper or parts prior to hire.  The learned Adjudicator did not consider this report or more correctly a record of inspection gained traction as independent or expert evidence of the cause or scope of damage to the chipper.  There was insufficient evidence of the specialised knowledge or experience of the author, no sufficient basis for opinion expressed and perhaps most telling of all the author’s recommendation that the owner take the chipper to a specialist.  These findings were open to the learned Adjudicator.  There is nothing probative in this assertion.

Ground two: The learned Adjudicator erred in rejecting the opinion evidence contained in the post hire report of Brandon’s Diesel Fittings as independent and expert evidence of the cause and scope of the damage to the chipper.

  1. [20]
    If Creative Concrete & Cutting is asserting the inspection of 12 October 2019 constituted expert evidence it does not.  There was no evidence before the learned Adjudicator of any specialised knowledge or experience of the author and particularly so in the context of the author recommending a specialist.  It was open to the learned Adjudicator to conclude there was insufficient basis for any opinion expressed.  Latter day production of a Tafe certificate III qualification does not necessarily constitute the author an expert.  If a party asserts expert evidence particularly a written document the author must be acceptable to the Tribunal as an expert.  On the evidence it was open to the Adjudicator to place no reliance on the report/inspection.

Ground three: The learned Adjudicator erred in deciding that there was insufficient evidence as to how the drum was damaged and the cause of the damage.

  1. [21]
    Urban X asserts the same post hire report provides no evidence as to how the drum was damaged or the cause of the damage or any particularisation of what objects were put in the chipper.  That was, it appears, the case and still is the case.  At best it is supposition as to how that may have come about.  Urban X also says the Sunshine Coast Chipper Service invoice of 22 October 2019 is for replacement of damaged parts; that there is no reference to cause of damage.  That is correct.  It was open to the Adjudicator on the basis of lack of evidence to make conclusions as to how the drum was damaged or the cause of the damage.

Ground four: The learned Adjudicator erred in placing too much weight on extraneous matters not supported or evidenced in the proceeding, particularly, where the parts could have been repaired instead of replaced.

  1. [22]
    It was asserted the learned Adjudicator erred in understanding the workings of the chipper and its moving parts.  It is not necessary to have an intricate understanding of the inner workings of the chipper.  The crux of the matter is about causation, enough evidence to support a conclusion that Urban X caused damage.  The post hire report/inspection and repair invoices are observational.  There is no expert report on hand. 

Ground five: The learned Adjudicator erred in finding that the blades had not been sharpened when the evidence of the appellant was that the blades were freshly sharpened and therefore the learned Adjudicator erred in failing to draw the inference that the blades were sharp.

  1. [23]
    Mr Drozdoff said he gave evidence that the blades were freshly sharpened and fitted and that the learned Adjudicator ought then have drawn the inference that they were so.  It seems clear that the learned Adjudicator preferred the evidence of Urban X’s Mr Seymour at hearing.  The learned Adjudicator said, “the Tribunal accepts the evidence of the respondent concerning the proper operation of the chipper, the type of materials fed into it, the greasing of parts and general care of the chipper”.  It was open in the context of the whole of the evidence placed before the Tribunal at first instance for the learned Adjudicator to accept the respondent’s evidence and,  at the very least, by implication over and above that of the applicant.  It cannot be said the learned Adjudicator erred in such a finding here.

Ground six: The learned Adjudicator erred in deciding that the respondent did not misuse the chipper when it was apparent, even from the Tribunal’s own findings, that the chipper was operated in such a manner where the blades were blunt and worn after two days of use.

  1. [24]
    Creative Concrete & Cutting’s assertion is about the manner in which the chipper was operated, that is, blades becoming blunt and worn after two days’ use, but the learned Adjudicator found there was nothing extraordinary about the respondent’s use of the chipper.  Nor was there any evidence confirmatory of the manner of use causing damage, only supposition about how blades are usually blunted by sand, gravel and stones.  In any event the learned Adjudicator only went so far as to say that, “after two days of use it would reasonably be expected that the blades would be blunt and worn”. 
  2. [25]
    The six grounds of appeal are only in the nature of further assertions which have been traversed or decided upon at initial hearing. 
  3. [26]
    Leave will not be granted where a party simply desires to reargue the case on existing or additional evidence.  A clear purpose of the requirement for leave before a party has the right to appeal, is to prevent any attempt to simply conduct a retrial on the merits of the case.  An application for leave to appeal is not, and should not be, an attempt to reargue a party’s case at the initial hearing. 
  4. [27]
    Having read the transcript and considered the evidence the Appeal Tribunal finds nothing to indicate that the Tribunal acted upon a wrong principle, or made mistakes of fact affecting its decision or was influenced by irrelevant matters.  The evidence was capable of supporting the Tribunal’s conclusions. 
  5. [28]
    There is no question of general importance for the Appeal Tribunal to determine.  There is no reasonably arguable case that the Tribunal was in error.  There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted.  Leave to appeal should be refused.
  6. [29]
    The Tribunal’s order is that leave to appeal is refused.

Footnotes

[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3)(a)(i).

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

[3]Key Promotional Products Pty Ltd v Carr [2019] QCATA 46.

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

[5]Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226, [13].

Close

Editorial Notes

  • Published Case Name:

    Uri Drozdoff t/as Creative Concrete & Cutting Pty Ltd v Urban X (Qld) Pty Ltd

  • Shortened Case Name:

    Uri Drozdoff t/as Creative Concrete & Cutting Pty Ltd v Urban X (Qld) Pty Ltd

  • MNC:

    [2021] QCATA 79

  • Court:

    QCATA

  • Judge(s):

    A/Member Bertelsen

  • Date:

    10 Jun 2021

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
Clarke v Japan Machines (Australia) (1984) Qd R 404
2 citations
Jump To
Cite 1 - (1984) Qd R 404
Cite 2 - (1984) Qd R 404
Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226
2 citations
Jump To
Cite 1 - [2011] QCATA 226
Cite 2 - [2011] QCATA 226
Key Promotional Products Pty Ltd v Carr [2019] QCATA 46
2 citations
Jump To
Cite 1 - [2019] QCATA 46
Cite 2 - [2019] QCATA 46
Pickering v McArthur [2005] QCA 294
2 citations
Jump To
Cite 1 - [2005] QCA 294
Cite 2 - [2005] QCA 294

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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