Langley & Anor v Ouzit Pty Ltd
[2024] QCATA 18
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- Langley & Anor v Ouzit Pty Ltd[2024] QCATA 18
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Langley & Anor v Ouzit Pty Ltd[2024] QCATA 18
Langley & Anor v Ouzit Pty Ltd[2024] QCATA 18
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Langley & Anor v Ouzit Pty Ltd [2024] QCATA 18 |
PARTIES: | Craig Langley and Rickie Langley (appellant) v OUZIT PTY LTD (respondent) |
APPLICATION NO: | APL008-23 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 21 February 2024 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member PG Stilgoe OAM |
ORDERS: |
|
CATCHWORDS: | APPEAL – GENERAL PRINCIPLES – leave to appeal – minor civil dispute – where there was a perceived the apprehension of bias – where the applicant alleged the Tribunal lacked procedural fairness – where applicant alleged error of fact – whether there are grounds for leave to 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) (‘QCAT Act’). |
REASONS FOR DECISION
- [1]On 23 August 2021, Craig and Rickie Langley engaged Ouzit Pty Ltd to carry out a pre-purchase pest report. As part of the report, Ouzit recommended a termite barrier be established, despite no termite activity having been detected. No such barrier was established.
- [2]Ouzit conducted a subsequent pest inspection following the purchase of the property which revealed termites on the western boundary fence. As part of that inspection Ouzit also carried out a general pest control spray.
- [3]Ouzit issued a bill to the Langleys and recommended a follow up treatment if there was still activity 4 weeks after the treatment. Dissatisfied by the outcome of the initial treatment, Ms Langley requested a respray; Ouzit did not respray because it had not received payment and the recommended 4 week period had not lapsed.
- [4]Ouzit filed a claim for payment of the outstanding bill. The Langleys counterclaimed, asserting Ouzit had not completed the work. The Tribunal dismissed the counterclaim and ordered the Langleys pay $801.12.
- [5]The Langleys want to appeal that decision.
- [6]In seeking leave to appeal the Langleys have filed additional evidence. The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined.[1] Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could the Langleys have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?[2]
- [7]Included in the fresh evidence is correspondence between the parties, discussing documents received by the magistrates court. The Langleys say this is relevant because Ouzit had failed to have certain documents sealed by the court before the hearing and that documents were also submitted incorrectly. Additionally, the Langleys allege that Ouzit has defamed them, providing correspondence to validate this claim.
- [8]The fresh evidence would not have an important impact on the result of the matter. Whether documentation was dealt with correctly does not affect the issue that was before the tribunal – should the Langleys pay Ouzit’s invoice. The Langleys’ defamation allegations were before the Tribunal and neither the Tribunal below, or the appeals tribunal, has any jurisdiction to deal with that allegation.
- [9]As the decision made by the Tribunal was in relation to a minor civil dispute, leave to appeal is necessary.[3] Leave to appeal will usually be granted where there is a reasonable argument that the decision involves an error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[4]
- [10]The Langleys say that the Tribunal’s decision was not fair and just, claiming that they should not have to pay for an incomplete service. They say that the Tribunal’s decision was affected by bias and the Tribunal acted arbitrarily when considering their request for compensation. Finally, they claim that they have been denied procedural fairness because Ouzit failed to disclose documents in a reasonable time prior to the hearing.
- [11]Bias is a serious allegation. The test is:
… if a fair-minded lay bystander might reasonably apprehend that the decision-maker might not bring an impartial mind to the determination of the issues that he or she must decide.[5]
- [12]The heart of the Langleys’ claim about bias is the Adjudicator’s opening comments that the Tribunal could not award damages on the basis of “hurt feelings” or a breach of contract.[6] The learned Adjudicator’s comments convey the legal realities according to the circumstances; they do not, in my view, indicate that he was not bringing an impartial mind to the dispute. In his reasons, the learned Adjudicator expanded on his preliminary comments, stating that the “tribunal has no jurisdiction to award damages for what is described as a breach of contract.”[7] I can find no basis for a finding that the learned Adjudicator’s decision was infected by bias.
- [13]The Langleys contend the Tribunal lacked procedural fairness as Ouzit had not provided Ms Langley certain documents in a timely manner before the hearing. Correspondence between the parties, however, indicates that the documents in question were sent to Ms Langley’s nominated postal address three months before the hearing. She had changed address and did not receive the document because she failed to notify either the tribunal or Ouzit. There is no lack of procedural fairness in the Tribunal’s proceeding.
- [14]Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[8]
- [15]The Langleys say that Ouzit did not warn them of termite activity in the pre-purchase inspection report and therefore should pay for the termite barrier they had installed. Ouzit’s recommendation that the Langleys establish a termite barrier is separate from the reports in relation to termite activity. That termite activity was found after the recommendation does not justify the Langley’s refusal to settle their accounts with Ouzit.
- [16]The Tribunal considered the Langleys’ counterclaim for the cost termite barrier. It found that Ouzit recommended the barrier and the Langleys decided to ignore that recommendation. The evidence supports that finding and I can find no reasons to come to a different view.
- [17]The Tribunal considered the issue of termite damage. The counterclaim of non-payment was not accepted, as “there was no evidence of live termites” when the second pest control company carried out its inspection.[9]Again, the evidence supports that finding and I can see no reason to come to a different view.
- [18]The Tribunal dismissed the Langleys’ claim that Ouzit had failed to complete the service to spray on the basis that it had completed one spray and that it was entitled to decline further work unless and until its first invoice had been paid. Once again, the evidence supports that finding and I can see no reason to come to a different view.
- [19]The Langleys have not established any error by the Tribunal in coming to its decision and there is nothing to suggest that they were the subject of a substantial injustice which the Appeal Tribunal needs to address.
- [20]Leave to appeal is refused.
Footnotes
[1] QCAT Act ss 137 and 138.
[2] Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408.
[3] QCAT Act s 142(3)(a)(i).
[4] Pickering v McArthur [2005] QCA 294, [3].
[5] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
[6] Transcript page 1-2, lines 5 – 20.
[7] Transcript page 1-23, lines 5 – 10.
[8] Dearman v Dearman (1908) 7 CLR 549, 561; Fox v Percy (2003) 214 CLR 118, 125-126.
[9] Transcript page 1-22, lines 5 – 10.