Ripple Court CTS 5711 v FRMS Sunshine Coast Pty Ltd
[2023] QCATA 152
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- Ripple Court CTS 5711 v FRMS Sunshine Coast Pty Ltd[2023] QCATA 152
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Ripple Court CTS 5711 v FRMS Sunshine Coast Pty Ltd[2023] QCATA 152
Ripple Court CTS 5711 v FRMS Sunshine Coast Pty Ltd[2023] QCATA 152
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Ripple Court CTS 5711 v FRMS Sunshine Coast Pty Ltd [2023] QCATA 152 |
PARTIES: | Ripple Court CTS 5711 (applicant/appellant) v FRMS Sunshine Coast Pty Ltd t/as First Response Maintenance Solutions (respondent) |
APPLICATION NO/S: | APL005-22 |
ORIGINATING APPLICATION NO/S: | MCDO 50058/21 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 11 December 2023 |
HEARING DATE: | 11 December 2023 |
HEARD AT: | Brisbane |
DECISION OF: | The Hon P J Murphy SC, Judicial Member |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – IN GENERAL – where the applicant applies for leave to appeal the decision of a magistrate sitting as a member of the Tribunal – where the applicant sought to rely on further evidence not before the Tribunal at first instance to found the application for leave to appeal – whether leave should be granted to rely on further evidence – whether leave should be granted to appeal Queensland Civil and Administrative Tribunal Act 2009 ss 61, 142, 143, sched 3 Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Amundsen v Queensland College of Teachers [2011] QCATA 2 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Ms O Umiljendic, member of the committee of the body corporate for Ripple Court CTS 5711 |
Respondent: | Mr T Peterson, director of FRMS Sunshine Coast Pty Ltd |
REASONS FOR DECISION
- [1]The strata committee at Ripple Court – a unit complex on the Gold Coast – engaged FRMS to carry out work on a wall at the unit complex. They refused to pay for the work upon its completion, asserting it was not fit for purpose.
- [2]A Magistrate sitting as the Tribunal at Caloundra on 30 November 2021 rejected that contention and ordered that the strata committee pay FRMS $7,279.91 plus court costs. The committee wants to appeal that decision.
The Dispute and The Decision
- [3]At the heart of the dispute is what the applicant asserts was the scope of works to be undertaken. In the proceedings below, that was expressed as saying that the work would “greatly reduce the amount of water coming in and last for several years”.[1]
- [4]The content of the conversations between the applicant and a representative of FRMS was disputed. In particular, it was asserted that FRMS was clear that the work undertaken “won’t fix the water coming through”.[2]
- [5]The written quote signed by the applicant and FRMS listed the work to be undertaken as, relevantly, “Scrape back the loose and blistering coatings to the walls; Patch walls followed by rendering of the walls; Apply 3 coats of Acrylic Membrane paint to seal the walls”. The quote also indicated work would be done on the wall on the adjoining property side. Again relevantly, “Apply 3 coats of Acrylic Membrane pain to seal the walls”.
- [6]Of some significance as it seems to me, under photographs of the wall to which the quote relates, it is said, relevantly:
Image 1 to 3: The exposed walls are leaching and blistering due to water ingress from the adjoining property. We have allowed to scrape back these areas, patch and re-render the damaged walls…
Image 4: The exposed block wall to the adjoining property will be sealed with 3 coats of an Acrylic Membrane paint. Unfortunately water is getting in where the wall meets the ground which is affecting the other side of the wall as per photos 1 to 3. The only way to rectify this is to dig up the driveway next door and waterproof the wall. We have not allowed to do this as part of our quote.
- [7]At an earlier hearing before the Magistrate on 28 September 2021, the parties agreed to appoint an independent expert and the Magistrate made a series of directions designed to facilitate communication with that expert. The directions included:
Both parties to put any further queries or requests for opinions to Structural Diagnostics within the next 14 days and provide confirmation to the other of those queries or requests.
- [8]An initial report from that expert was prepared on 13 October 2021. The transcript of the 30 November proceedings refers to “some email discussions about that”[3]. A further report was prepared on 21 October 2021.
- [9]In what are admittedly very brief reasons, the Magistrate referred to the independent expert report and found:
Ultimately the report indicates that any defects observed to the work are minor and, as previously indicated, that same report writer has described the work as being fit for purpose.[4]
Leave to Appeal
- [10]The challenged orders are made in a “minor civil dispute”.[5] As a result, leave to appeal is required.[6]. An application for leave to appeal must provide a basis for its grant directed to whether an arguable case of error attends the decision and whether the error has caused the applicant a substantial injustice. [7]
- [11]The parties here are self-represented. As is common in the Tribunal, arguments in support of the grant of leave are here not articulated separately from the arguments supporting the appeal. If s 143(2)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) – read in light of ss 143(3) and (4)(a) and (b) of that Act – is to be seen as requiring the filed application to specify reasons for the grant of leave separate from grounds for the appeal, in this case that requirement should be waived.[8]
- [12]However, neither the application nor the submissions in support of the appeal identifies with any precision the legal or factual errors said to found the application for leave or, if granted, the appeal itself.
- [13]By directions made in the appeal, a further opportunity was afforded to the applicant to articulate each. The material filed in response was, with all respect to the self-represented applicant, discursive and lacking in precision.
- [14]At the oral hearing of the application, the applicant was given a further opportunity to specify in lay language precisely what were said to be the errors of law or substantial errors of fact relied upon. The applicant made it clear that no errors could be identified in the absence of further evidence which, it was contended, should be received in the application for leave.
- [15]The applicant had earlier flagged such an application but, again respectfully, the nature of the evidence and the basis upon which it was said it should be received were unclear. The directions earlier referred to sought elucidation of the same, but the written material filed in response did not do so.
- [16]At the oral hearing, the applicant identified the new evidence as an email dated 19 January 2022 from Adam Husband at Structural Diagnostics. That firm provided the independent expert report upon which the Magistrate relied.
- [17]Relevantly, the email said:
…
2. FRMS contacted me regarding a potential solution to the water ingress in the masonry wall, they requested whether sealing of the neighbouring driveway to the masonry wall would provide a solution to the moisture ingress in the wall. It is our opinion that it would not be a long term solution.
3. There is nothing that we have reviewed that confirms the Body Corporates engagement of FRMS as anything more than an aesthetic upgrade.
…
- [18]As best as could be understood, the applicant’s contention is that the email is evidence that the scope of works was more extensive than that referred to in the quote – that is, in effect, that the quoted works were to affect a “solution to the water ingress”.
- [19]In my view, the email does not do so. It refers to FRMS contacting them as to a “potential solution”. The reference to the contact between FRMS and Structural Diagnostics can in my view plainly be seen to be a reference to email communications that were in evidence before the Magistrate.
- [20]At the hearing, the representative of FRMS referred the Magistrate specifically to an email between FRMS and that expert on Monday 26 October 2020. It records that FRMS had been requested to quote “for repairing the driveway walls that have water ingress issues”. The email goes on:
… I have spoken to the Chairperson about the cause which I believe is coming from the property next door. I have attached a couple of photos …
I initially suggested we could put mastic along the junction of the wall and the ground where they meet, but it looks as though the gravel is loose and this would be a waste of time. I have allowed to repair the render and rerender the walls followed by 3 coats of membrane down the driveway. I have allowed 3 coats of membrane on the block wall.
Other than dig out the ground area next door and waterproof the entire wall I don’t believe there is another option? Do you agree or is there another option? …
- [21]The responsive email the same day, also in evidence before the magistrate, indicates “I agree with you that the best-case scenario is waterproof the entire wall, however not cost effective”. In response to that email, the FRMS representative emailed later the same day, “… I told the Chairperson exactly that. What we are proposing will not fix the problem but will slow it down…”.
- [22]In my view, the email says nothing about what was agreed ultimately between FRMS and the applicant. The best evidence of that before the magistrate is the signed quotation.
- [23]In my view, the evidence sought to be adduced on the appeal does not illuminate any error made by the magistrate and cannot be said to have any impact on the outcome of the appeal.
- [24]The application to adduce further evidence should be refused.
- [25]The applicant concedes that, absent new evidence, she can point to no legal or factual error made by the magistrate. Leave to appeal should be refused.
Orders
- The application to adduce further evidence in the appeal is dismissed.
- The application for leave to appeal is dismissed.
- There be no order for costs.
Footnotes
[1] See for example transcript of proceedings 30 November 2021, p 1-10, l 36; p 1-12, l. 23.
[2] See, for example, transcript of proceedings 30 November 2021, p 1-11.
[3] Transcript of proceedings, 30 November 2021, p 1-2.
[4] Transcript of proceedings, 30 November 2021, p 1-13.
[5] Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”), Dictionary, Schedule 3.
[6] QCAT Act, s 142 (3)(a)(i).
[7] QCAT Act, s 143(2)(b). As to the requirements for leave to be granted, see, for example, Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400; QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; Amundsen v Queensland College of Teachers [2011] QCATA 2.
[8] QCAT Act, s 61(1)(c), (5).