Boyd v Fussy Roof Restorations Pty Ltd

[2018] QCATA 142

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Boyd v Fussy Roof Restorations Pty Ltd  & Anor [2018] QCATA 142

PARTIES:

FUSSY ROOF RESTORATIONS PTY LTD
(appellant)

v

BERRICK WALTER BOYD and JANICE MARY BOYD

(respondents)

APPLICATION NO:

APL412-17

ORIGINATING APPLICATION NO/S:

MCDO 614 of 2017 (Southport)

MATTER TYPE:

Appeals

DELIVERED ON:

 25 September 2018

HEARING DATE:

24 September 2018

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes, Member

ORDERS:

The application for leave to appeal is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPLICATION FOR LEAVE TO APPEAL – GENERAL PRINCIPLES – nature and limitations of applications for leave to appeal – house repairs – whether repairs as made met the terms of the contract – where home owners sought refund of contract price

Queensland Civil and Administrative Appeals Tribunal Act (Qld) sections 32, 142(3)

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Coulton v Holcombe (1986) 162 CLR 1.

Devries v Australian National Railways Commission (1993) 177 CLR 472
Fox v Percy (2003) 214 CLR 118http://

Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611

Robinson v Corr [2011] QCATA 302

Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014

Snell v Morgan [2011] QCATA 316
Thompson & Anor v Jedanhay Pty Ltd [2012] QCATA 246.

W (an infant) In Re [1971] AC 682

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

1. On the Gold Coast, in the winter of 2016, Mr and Mrs Boyd (`the Boyds’) were troubled by a leaky roof. They engaged the respondent (`Fussy’) to remedy the problem. Negotiations between the parties commenced on 29 June 2016 with Fussy’s quotation for `identification and rectification of leak’ (singular).[1] On 6 July 2016 Fussy gave a guarantee `against re-leaking in the same area for a period of 2 years’. Fussy’s offer, thus extended, was accepted by the Boyds.

   [1]Email Fussy to Janice Boyd 29 June 2016.

2. On 4 August 2016 the Boyds complained to Fussy that `there were 3 leaks during our overnight rain’.[2]  Fussy contends that it was required to deal with one leak only.

   [2]Letter Boyds to Fussy 4 August 2016. See also letter Boyds to Fussy 17 January 2017.

3. On 10 July 2017, dissatisfied with Fussy’s remedial efforts, the Boyds filed a Minor Civil Dispute against the company.

4. The matter was heard at Southport by two Justices of the Peace on 5 December 2017. The tribunal found for the Boyds and ordered Fussy to pay them $2,400 and $116 in costs. Against that decision Fussy now seeks leave to appeal.

   Nature and Limitations of Application for Leave

5. Before proceeding further it is desirable to explain the nature and the limitations of an application for leave to appeal. The need to obtain leave[3] reflects a legislative policy that primary decisions of the tribunal, particularly in minor civil disputes, should normally be final. Neither a leave application nor an appeal is an opportunity for a retrial. The trial is not merely a `preliminary skirmish’.[4] An appeal is not an occasion to repeat or reargue evidence rejected by the first tribunal, or to present material that could have been put before it, but was not.[5] It is not nearly enough for an applicant to express disappointment, or a subjective feeling that justice has not been done.[6]

   [3]QCAT Act s 142(3)(a)(i).

   [4]Coulton v Holcombe (1986) 162 CLR 1 at 7 (per Gibbs CJ, Wilson, Brennan and Dawson JJ).

   [5]Snell v Morgan [2011] QCATA 316 at [10]; Thompson & Anor v Jedanhay Pty Ltd [2012] QCATA 246 at [28].

   [6]Robinson v Corr [2011] QCATA 302 at [7].

6. The onus is on the applicant to demonstrate some arguable error of law causing a substantial injustice, or that the tribunal acted in flagrant disregard of evidence clearly established, or has reached a conclusion that is glaringly improbable.[7]  It is not appellable error to prefer one version of the facts to another, or to give less weight to one party’s case than he or she thinks it deserves. Findings of fact will not be disturbed if they have rational support in the evidence, even if another reasonable view is available.[8] An appeal tribunal may not simply substitute its own view for that of the primary decision-maker. Where reasonable minds may differ, a decision is not erroneous simply because one conclusion has been preferred to another possible view.[9]

   [7]Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 per Brennan, Gaudron and McHugh JJ.

   [8]Fox v Percy (2003) 214 CLR 118 at 125-126.

   [9]Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at

   [131]; In Re W (an infant) [1971] AC 682 at 700; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151.

   The Cases Presented

7. It is common ground that, after Fussy attended to the roof, rainwater was still entering the interior of the house.[10] However, the parties differ sharply on the number of defects in the external roof that Fussy had to remedy. Fussy’s case is that it was required to deal with only one such leak, `You [Boyds] say three now, but I’ve got one’.[11] On the other hand the Boyds insist in correspondence and in their oral evidence that there were several leaks, all of which should have been sealed. Mr Boyd mentioned as many as four.[12] Mrs Boyd testified that `[w]e had three leaks. We employed him to do three leaks, and none of them are [sic] fixed.’[13]

   [10]Transcript of hearing 5 December 2017 (T) page 7 lines 12-13 (Aleknavicius).

   [11]T page 14 line 39 (Aleknavicius).

   [12]T page 11 line 19.

   [13]T page 14 line 36.

8. Fussy’s quotation refers to `leak’ in the singular[14], and its Response asserts that `[t]he agreement and applicable warranty was for one leak only not the entire roof.’[15]  That plea was repeated at the hearing:

   I specifically wrote that on the quote because I knew the kind of problem this [sic] was going to have with this roof. ... [T]here’s more issues that we haven’t quoted on[16].

   [14]As noted by Aleknavicius at T page 28 line 10.

   [15]Response filed 7 August 2017, annexure 1 page 1.  

   [16]T page 29 lines 6-7, 14.

9. However, as noted above, the Boyds insist that they hired Fussy to stop at least three leaks into the interior of their house.[17] In a letter to Fussy on 4 August 2016 they complained of continuing leaks into a theatre room and a storeroom. On 10 December 2016 they reported water damage to the lounge room from water entering through a skylight. On 17 January 2017 they noted a leak from a box gutter, and repeated their complaints about leakages into the `theatre’ and the lounge room.  These claims were supported by the evidence of Renmark Plumbing Services[18], whose expertise and factual observations were not disputed. Mr Boyd ridiculed any suggestion that a reasonable roof repairer would charge, or that a sensible homeowner would willingly pay $2,400 for the  repair of just one leak.[19]

   [17]T page 14 line 36-37.

   [18]Report of Renmark dated 20 April 2017.

   [19]T page 28 lines 34-35.

10. By way of defence Fussy submitted that leaves from overhanging trees made its task extremely difficult, if not impossible. In support of that proposition Fussy tendered an undated opinion of the President of the Queensland Master Roof Tilers’ Association which reads in part:

    Due to the many small leafed trees surrounding the roof the link channels have become blocked, allowing water ingress into the roof cavity and eventually into the ceiling space. To rectify the problem, regular cleaning of all leaf debris on the whole roof area is required. If this is not possible, removal of offending trees needs to be considered.[20]

    [20]Letter QMTRA to Fussy, undated, 5^th paragraph.

11. The tribunal made no explicit finding on the `one or several leaks’ issue, but it is clearly implicit that – one external leak or three - they preferred the case presented by the Boyds:

    [I]n the final analysis, the contract between the Boyds and Fussy was a very simple one. “We have a leak. Find it, fix it, and we’ll pay you.”[21]

    [21]T page 37 lines 27-29.

12. The tribunal could reasonably take the view that a layman – as distinct from a roof repair specialist – in describing the inconveniences that the Boyds allegedly experienced, would count each leak inside the house separately, whether the water entered through one hole in the external roof, or through several. If, as suggested[22], one external leak may have spread to several internal locations, then it follows that the one external leak was not properly eliminated.

    [22]There was a suggestion, which Fussy did not reject, that `Sisalcraft’ lining or insulation under the roof tiles could multiply one or more external leaks into  multiple internal leaks: T page 24 lines 22-27, page 34 lines 40-44.

13. Fussy placed considerable emphasis on the skill and experience of his staff.[23] They saw, or should have seen that invasive leaves made a lasting cure extraordinarily difficult. That being so, Fussy could have withheld its `guarantee’ in favour of explicit warnings and reservations, or might simply have declined the commission. Indeed Fussy’s director, Mr Aleknavicius, hinted broadly that it was an assignment that other repairers would have been anxious to avoid.[24]

    [23]T page 22 lines 30-31, page 24 line 29.

    [24]T page 30 lines 38-40.

    Resolution

14. The appellant Fussy has not demonstrated any appellable error[25] in the proceedings below, nor do I discern any. There was evidence upon which the primary tribunal could reasonably reach the conclusion that it did, and accordingly it is not for this tribunal to interfere. The application must be dismissed.

    [25]As explained in paragraphs [5] – [6] above.

    ORDER

15. The application for leave to appeal is dismissed.