Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

H. R. D. Properties Pty Ltd v Peter the Possum and Bird Man (Qld) Pty Ltd[2022] QCATA 60

H. R. D. Properties Pty Ltd v Peter the Possum and Bird Man (Qld) Pty Ltd[2022] QCATA 60

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

H. R. D. Properties Pty Ltd v Peter the Possum and Bird Man (Qld) Pty Ltd [2022] QCATA 060

PARTIES:

H. R. D. Properties Pty Ltd

(appellant)

v

Peter the Possum and Bird Man (Qld) Pty Ltd

(respondent)

APPLICATION NO/S:

APL155-21

ORIGINATING APPLICATION NO/S:

MCDO52565/20 (Brisbane)

MATTER TYPE:

Appeals

DELIVERED ON:

4 May 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

Leave to appeal is refused.  This means the appeal fails.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN NO APPEAL LIES – where the appellant seeks ‘a review of a question of fact or law’ in a decision made by a tribunal Adjudicator – whether there is an arguable ground of appeal

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. [1]
    This is an appeal about the contractual sum for pest control services and whether the parties compromised their dispute about it.
  2. [2]
    Peter the Possum and Bird Man (Qld) Pty Ltd (PPBM) did some pest control work for H. R. D. Properties Pty Ltd (HRD) and when the invoices remained unpaid, brought a claim in the tribunal for their payment.  The claim was for $1,298 plus some formal fees.
  3. [3]
    In a formal response to the claim, HRD said that the work was defective, and it had to pay others $550 to complete it.  It said that the dispute between the two sides had been settled when it had agreed with PPBM to pay only $484 in full and final satisfaction of the invoices.
  4. [4]
    The matter was heard by a tribunal Adjudicator who decided that there was no such compromise agreement, and that PPBM was entitled to charge $1,298 subject to a set off for the $550.  The Adjudicator ordered HRD to pay PPBM the sum of $871 which was $748[1] plus the filing fee.
  5. [5]
    In this appeal, HRD requests ‘a review of a question of fact and law’ and says that the Adjudicator should have found that:
    1. (a)
      The parties settled the dispute and made a ‘binding agreement’ that HRD would pay only $480, or (it seems) in some other way PPBM limited its claim to $480.
    2. (b)
      The amount quoted was only $836, not $1,298.  The $1,298 was not an agreed amount, there was no variation of the contract to that amount, and PPBM unilaterally increased the contract sum to that amount.
    3. (c)
      PPBM was negligent in providing the services and others had to be engaged to complete the pest control work at a cost of $550.
  6. [6]
    The request for a ‘review’ might disclose a belief that it is possible to get a second opinion from another decision maker on the same evidence as was before the Adjudicator in the hearing.  However, this is not the function of the Appeal Tribunal; the appeal will only be successful if the Appeal Tribunal considers that the Adjudicator made a finding of fact which was not available on the evidence or if the Adjudicator applied incorrect legal principles.
  7. [7]
    Ground (a) is confused because it is clearly said in the application for leave to appeal and appeal, and in the witness statement of HRD’s director that was before the Adjudicator,[2] that the parties agreed a settlement sum of $480,[3] yet in the submissions in this appeal it is said the parties did not settle the dispute.[4]
  8. [8]
    In any case, it is clear that the Adjudicator was right to find that the dispute had not been settled in a compromise agreement for the following reasons. 
  9. [9]
    HRD’s evidence showing such a settlement was an email dated 21 April 2020 from PPBM’s debt collectors which stated:

Our client has accepted the settlement offer in the amount of $480.

  1. [10]
    The legal effect of this communication can only be understood from the settlement offer which was referred to in this email.  HRD did not provide that to the Adjudicator.  It does appear however, in the debt collectors’ internal records which were handed up to the Adjudicator at the hearing.  These records recited the offer concerned, seemingly word for word.  The offer came from HRD’s solicitors on 6 April 2020 and the relevant parts said:

Notwithstanding the above, and without admission of liability, we are instructed to offer the total sum of $480 in full and final satisfaction, subject to your client releasing and discharging Garry Day, associated Corporations, including their agents, and the parties agreeing to execute a Deed.

This offer is open for acceptance until 4pm on Tuesday 14 April 2020.

  1. [11]
    The terms of this offer present quite a different picture from that put forward by HRD.  For one thing the offer was time limited and was not accepted in time, and the offer was subject to the parties executing a Deed, which meant it was ‘subject to contract’.  Hence the email of 21 April 2020 did not result in a binding compromise.  There were no other discussions, and there was no other correspondence capable of being a compromise.
  2. [12]
    It seems to be suggested in this ground of appeal that the Adjudicator should have found that PPBM was estopped from claiming any more than $480 because of its representation that it would accept $480.  That argument was not one before the Adjudicator and so is difficult to make on appeal.  In any case it would not be successful because HRD did not change its position in reliance upon any such representation.  In particular, it did not pay the $480.
  3. [13]
    This ground of appeal is bound to fail.
  4. [14]
    As for ground (b), the Adjudicator accepted the evidence given by Ms Vernon of PPBM that a representative of HRD had been closely in discussion about the work which was required and approved all the extra work.[5]  Since it was not disputed by HRD that this had happened,[6] clearly the Adjudicator was entitled to find that extra work had been agreed within the contract increasing the contract sum to $1,298.
  5. [15]
    This ground of appeal is bound to fail.
  6. [16]
    As for ground (c), since the Adjudicator deducted the $550 from the amount payable by HRD it is difficult to see that there is any error alleged.

Other points made in the appeal

  1. [17]
    It is said by HRD that it did not have an opportunity at the hearing to explain its own case and to answer PPBM’s case.[7]  There is no detail given, but bearing in mind this appeal is being dealt with on the papers, the Appeal Tribunal will do its best to identify anything which might have made the hearing unfair in this way.
  2. [18]
    It is possible that this is a reference to Ms Vernon handing up PPBM’s debt collectors records to the Adjudicator in the hearing.[8]  It would appear that HRD did not have these records.  HRD appeared in the hearing on the telephone and so may have been at a disadvantage in not having these records.  However, the records were simply a record of the correspondence between the debt collectors and (a) HRD, (b) HRD’s lawyers and (c) the tribunal.  HRD would have had (a) and (b).  (c) would not contain anything of interest to the Adjudicator.  So ultimately it is difficult to see any disadvantage to HRD arising from the fact that the records were handed to the Adjudicator at the hearing and not given to HRD.  In any case the Adjudicator read out those parts of the record of interest and asked HRD to comment.[9]  Such a process would be designed to remove any such disadvantage to HRD. 
  3. [19]
    It is possible that it is a reference to Ms Vernon giving evidence at the hearing about the agreement to do extra work, as agreed by the named representative of HRD.  It would be expected that such events would be described in the application itself but this did not happen.  At the hearing, Mr Day on HRD’s behalf seemed to accept that this was known to him, and did not deny that it happened, but instead concentrated on the wrong advice being given by PPBM as he saw it.[10]  It does not appear that he was taken by surprise by this evidence.  The reason for this is most likely that on 12 February 2020 PPBM’s debt collectors emailed HRD’s lawyers with the same information.[11]  It is likely this found its way to Mr Day.
  4. [20]
    It was not suggested by Mr Day on HRD’s behalf in the hearing that it was disadvantaged by the process followed by the tribunal that day.  There was no objection to the debt collectors record being taken in evidence or to Ms Vernon’s evidence.  And it is not said in this appeal that either of these things meant that HRD was not able to explain its own case and answer PPBM’s case.
  5. [21]
    It would appear that the arguments for both sides had been well rehearsed by the time of the hearing and neither party was taken by surprise by anything said, or relied on, by the other party.
  6. [22]
    I must conclude therefore that the hearing was conducted in a manner fair to the parties and that there is no substance in this ground of appeal.

Conclusion

  1. [23]
    In these types of appeal, leave to appeal is necessary.  Leave to appeal will only be given if the appeal is reasonably arguable or there is some other reason to grant leave.  None of the grounds of appeal are reasonably arguable, and since there is no other reason to grant leave I refuse it.  The appeal therefore fails.

Footnotes

[1] $1,298 less $550.

[2] Mr Day’s statement dated 11 April 2021, [9].

[3] Section D4.

[4] Submissions 28 July 2021, [20].

[5] Transcript 1-5 line 11, 1-11 line 35.

[6] Transcript 1-5 line 32.

[7] Submissions 28 July 2021, [34], [35].

[8] Transcript 1-3 line 42.

[9] Transcript 1-7 to 1-9.

[10] Transcript 1-5 line 32.

[11] Debt collectors’ records page 6.

Close

Editorial Notes

  • Published Case Name:

    H. R. D. Properties Pty Ltd v Peter the Possum and Bird Man (Qld) Pty Ltd

  • Shortened Case Name:

    H. R. D. Properties Pty Ltd v Peter the Possum and Bird Man (Qld) Pty Ltd

  • MNC:

    [2022] QCATA 60

  • Court:

    QCATA

  • Judge(s):

    Member Gordon

  • Date:

    04 May 2022

Appeal Status

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

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.