Goonan v Tang[2024] QCATA 85

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   On 28 February 2023 Mr Tang commenced a proceeding in the minor civil disputes jurisdiction of the Tribunal claiming a total of $8,282.31 from Mr Goonan as a “minor debt”. The particulars of the claim recite that he entered into a contract with Mr Goonan to build closed in trailer for a total cost of $23,000. On collecting the trailer after retaining $1,000 for defects, he identified further defects and non-compliance with the contract specifications.
2. [2]
   Mr Teng had discussions with Mr Goonan about these issues, with promises by Mr Goonan to fix the defects and address the non-compliance. Despite these discussions, the negotiations broke down and Mr Tang decided not to engage with Mr Goonan any further.
3. [3]
   After some interlocutory skirmishes, including setting aside a default decision for failing to file a response, the matter came on for hearing before a tribunal adjudicator on 21 June 2023 Mr Goonan did not appear at the hearing. The learned adjudicator, made a decision that Mr Goonan pay Mr Teng the sum of $8,282.31.
4. [4]
   In support of his claim, Mr Tang contended in the filed documents that the cost of repairs for the defects was $8,000 and this formed the substance of his claim. In a submission to the Tribunal, before the hearing dated 20 April 2023, he provided particulars of the cost of repairs as follows:

   1. Placing the breakaway system [registration and contractor requirement closed bracket
   2. Placing a rego. plate light (registration and contract requirement).
   3. Stamp the vin number on the chassis(registration and contract requirement) - item 1 paid $550 see attached.
   4. Safety certificate (contract requirement) – paid $275 see attached Pic 2.
   5. Replacing the damaged panel (see picture) - quoted $800.
   6. Replacing all panels to grey colour or wrapping the trailer into grey colour. (as contract quantity and Jacob agreed to do so) - quoted for $3610, see attached pic 3.
   7. Complete the paintwork of the trailer (contract requirement) - quoted for $1,200
   8. Tighten all bolts and nuts (safety and registration requirement) - quoted $250.
   9. Supply grease to all bolt - quoted $200 dollars
   10. Replacing the CI iron floor panels to the aluminium floor panels (as contract requirement) see photos 19 and 20. The floor panels in the trailer were supposed to be the same as the panels used on the ramp (pic 19) but they were trying to rip me off and use some cheaper materials to put on the trailers flooring - quoted for $2000

Total cost of repairs is $8,085.00

I believe the cost of the repair is reasonable because this is what I (was) quoted and paid for.

5. [5]
   Therefore, the costings for repair works were not all independently assessed but some taken from the quote provided by Mr Goonan for the construction of trailer. In other words, he was seeking a credit for amounts paid under the contract for which he did not receive any value.
6. [6]
   The factual matrix supporting this claim is one where Mr Teng’s the cause of action against Mr Goonan, is for damages for breach of contract. The key undisputed facts are that

   1. A contract for the construction of the trailer was entered into;
   2. The trailer was constructed;
   3. Mr Teng took delivery of the trailer and paid all but $1,000 of the contract price;
   4. Upon taking delivery he identified defects;
   5. Mr Goonan has accepted that the trailer was not constructed in accordance with the specification in the contract and had defects.
7. [7]
   There appears to be no dispute about the extent of the defects from Mr Goonan’s material. It follows that Mr Goonan breached the contract by not delivering to Mr Tang a trailer in accordance with the agreement reached.
8. [8]
   The damages, in a case like this, have to be assessed by the Tribunal where there is a default in appearance. By contrast, this is not a claim for a debt or liquidated demand where there is a sum certain. This is what is generally referred to as a “trader claim” under s 1(b)(iii) of the definition of minor civil dispute in schedule 3 of the QCAT Act. It provides:

2. a claim arising out of a contract between a consumer and a trader..that is:

3. for performance of work of a value of not more than the prescribed amount to rectify a defect in goods supplied or services provided

9. [9]
   There was no evidence before the Tribunal about the actual cost of any actual rectification. Some quotes have been provide and some of the costings, are based on the quote provided by Mr Goonan. An example of the need for assessment is the claim for the replacement panel. There is a claim for $800.00 to replace one panel and an additional claim to replace all panels for $3,610.00 as an alternative to grey wrappig te trailer. Clearly this is double up claim if assessed that way.
10. [10]
    Also with respect to colour, the claim is to repaint the trailer but the replacement panels seem to address this particular problem. However some of the claims made can be substantiated by reference to the quote for work not done, e.g. obtaining a safety certificate, and fixing the vin plate for which there are quotes.
11. [11]
    On 3 July 2023 Mr Goonan filed an application for leave to appeal or appeal. The grounds of appeal are somewhat vague and assert facts, it seems, not put before the learned adjudicator. He contends he was not responsible for the damaged panel and the costs claimed are “excessive and extreme”. He also contends, in the orders sought part of the application, that the colour of the panels was not originally specified and they were not available.
12. [12]
    On 15 August 2023 he filed a submission contesting the assessment of the damages in more detail, the type of evidentiary detail to be expected to be provided in the primary hearing. This evidence would not generally be admitted in an appeal.
13. [13]
    As this is an appeal brought under s 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’) in respect of a decision in a proceeding for minor civil dispute, an appeal may be made only if the party has obtained leave of the Tribunal. Leave to appeal (or permission) will usually only be granted where there is a reasonable argument the decision was attended by error, or that an appeal is necessary to correct the substantial injustice caused by the error.^[1] Further in Rintoul v State of Queensland & Ors [2018] QCA 20 at [10] the Court of Appeal reiterated the general principles:

The principles governing a grant of leave to appeal are well-established. In short, an applicant for leave to appeal must show:

1. the appeal is necessary to correct a substantial injustice;

2. there is a reasonable argument that there is an error to be corrected.

There must be reasonable prospects of success to warrant a grant of leave. Therefore, in deciding whether to grant leave to appeal the Court usually makes some preliminary assessment of the prospects of the proposed appeal.

14. [14]
    What has occurred here is that there was no critical consideration to each of the claims made by Mr Tang. This is already demonstrated above. Even though responsibility  for the defects and incomplete work was generally admitted by Mr Goonan, it was the Tribunals function to ensure that the damages claimed were reasonable and recoverable as a matter of law.
15. [15]
    Therefore, it was incumbent on the learned adjudicator to assess the damages claimed, even if it meant satisfying himself to each item claimed, and giving reasons for his assessment. Unfortunately, here the learned adjudicator simply accepted the basis of the assessment as provided by the applicant and did not provide any reasons as to why that assessment should be adopted. He said:

……..in view of the absence of the respondent, in the material it appears that the respondent admits liability, but disputes the amount of the claim. But as he is not here today, I am going to make an order for the full amount of the claim in your favour. I do see that in some of the material, he's asked for a payment claim, but he hasn't made any suggestion.^[2]

16. [16]
    The failure to undertake an assessment and give reasons is an error of law and therefore leave to appeal will be granted. Because of this error the appeal must be allowed.
17. [17]
    The question then is whether the proceeding should be returned to the Tribunal below to assess damages. If that were to occur, Mr Goonan will, no doubt, file and rely on his submission filed in the appeal. Should he choose to do that on a rehearing of the assessment of damages, it is difficult to see how that could be resisted as a matter of procedural fairness.
18. [18]
    From a practical point of view, if that evidence was admitted in the appeal, I would then be in as good a position as the adjudicator assess the damages. To return the matter would necessarily involve delay, more costs to the parties and given the amount involved, would be counterproductive. I should also add that Mr Tang did file a submission in response, basically relying on his earlier submission to the Tribunal below. I therefore propose to adopt that course. I will deal with each individual claim.

The break-away system, number plate light and VIN plate

19. [19]
    Mr Teng produced an invoice from Issac Berge confirming the cost to complete this work is $550.00. Although Mr Goonan has provided an excuse as to why this was not done, and he was going to attend to it, this was an integral part of the contract. This part of the claim is recoverable.

Safety Certificate

20. [20]
    Again a necessary item for the purposes of registration. An invoice for $275.00 from ASAP Roadworthys has been produced to confirm this cost. The cost of this is recoverable.

Replacing the damaged panel

21. [21]
    Mr Goonan seems to accept responsibility for this. When delivering the trailer the trailer door flew open and swung back whereby the handle penetrated the panel. Mr Teng claims $800.00 on the basis of a quote, which does not appear to be in the file. Mr Goonan disputes this costs and says it should be limited to $500.00 - $80.00 for the panel and 3 hours to fix at $140.00/hr. As no quote was produced for $800.00, I am inclined to accept Mr Goonan’s evidence on this point. I will allow $500.00 for the damaged panel.

Replacing all panels with grey panels as per the contract or wrapping the trailer into a grey colour.

22. [22]
    The first text message attached to Mr Teng’s statement (undated) filed in support of his claim notes the addition of “outside grey colour” and “Aluminium floor and ramp”. The following text messages from Mr Goonan suggests he ignored the requirement for the grey colour. His excuses were that the supplier did not have them in stock and they were in short supply in any event. He agreed to a grey colour wrap of the trailer instead to address this problem, but never followed through. This is evident from the text messages attached to Mr Teng’s statements particularly that of 20 April 2023.
23. [23]
    Mr Teng has provided a quote for the grey wrap from Shogun Wraps and Signs for $3,610.00. There is no evidence to the contrary. Oddly, Mr Goonan provided as estimate of the costs to replace the panels instead.
24. [24]
    In considering this part of the claim, the independent quote seems reasonable and I will therefore allow $3,610.00 to grey wrap the panels.

Complete paint work on the trailer and grease bolts.

25. [25]
    Mr Teng claims $1,200 for this work he refers to a quote has been produced. I assume he was told this would be the cost but there is no evidence about this at all. There is reference in text messages (pictures 11 and 12) to shortcomings in the painting, presumably of the chassis, but not the whole of the trailer. There is reference to welds and bolts showing signs of rust. Mr Goonan says it would only cost $200.00.
26. [26]
    Some allowance should be made for this. As it is unclear where the cost of $1,200.00 came from, I will simple allow $500.00 for this extra painting work which is a reasonable balance between the two propositions. Bearing in mind that it seems it is only the underneath of the trailer that needs attention.
27. [27]
    Because Mr Goonan, again in text messages, seems to accept that not all of the fixing bolts were tightened as he was going to attend to this, I will allow the $200.00 claimed which includes the claim for greasing the bolts.

Floor panels

28. [28]
    Mr Teng contends that the flooring should be the same as that used on the trailer ramp. Photos 19 and 20 (text messages) show that there is different checker plate material on the ramp and the floor. He relies on the amended quote which simple refers to aluminium floor and ramp. It does not specify they have to be the same type of plate.
29. [29]
    Mr Teng refers to the floor as being CI iron floor panels, which I assume is cast iron. This is obviously a different product and despite Mr Goonan saying that aluminium is not suitable for the flooring as it is not strong enough, he seems to be referring to the grade of aluminium used for the ramp. Logically, if the aluminium used for the ramp would take the same loads at the floor, one wonders why it would not be suitable. He then says that the aluminium flooring was not in the original quote. This would suggest that if Mr Teng wanted aluminium flooring it would have been quoted. Mr Goonan’s response is unsatisfactory.
30. [30]
    As for the cost, again although there is reference to a quote of $2,000.00 to replace the floor, no quote has been produced. If it has been replaced then an invoice should have been produced.
31. [31]
    In note also that the final payment of $1,000.00 has not been paid. I propose allow $1,000.00 for the flooring and the retention can but used to cover these costs.

Summary

32. [32]
    The assessment of Mr Tang’s damages is as follows:

    1. Break-away system, lights and VIN plate $550.00
    2. Safety certificate$275.00
    3. Damaged panel$500.00
    4. Grey wrap$3,610.00
    5. Paint and grease and tighten bolts$700.00
    6. Floor panels$1,000.00

Total$6,635.00

33. [33]
    As I said earlier, the $1,000 retention should be credited to the assessed damages. The result is that Mr Goonan must pay Mr Teng the sum of $5,635.00 damages.
34. [34]
    I therefore propose to make the following orders:

    1. Leave to appeal is granted.
    2. The appeal is allowed.
    3. The decision of the Tribunal dated 21 June 2023 is set aside.
    4. The applicant pay to the respondent the sum of $5,635.00 by 30 September 2024.