Diverse Industries Australia Trust v Cherlocks Pty Ltd

[2014] QCATA 234

CITATION: Diverse Industries Australia Trust v Cherlocks Pty Ltd [2014] QCATA 234

PARTIES:	Diverse Industries Australia Trust (Applicant/Appellant)
v
Cherlocks Pty Ltd (Respondent)

APPLICATION NUMBER: APL160-14

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Thomas, President

DELIVERED ON: 26 August 2014

DELIVERED AT: Brisbane

ORDERS MADE:

1.    Leave to appeal granted.

2.    Appeal allowed.

3.    The decision of 13 March 2014 dismissing the claim by Diverse Industries Australia Trust is confirmed.

4.    The decision of 13 March 2014 ordering Diverse Industries Australia Trust pay Cherlocks Pty Ltd travel costs of $4,640 is set aside.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where claim for unpaid invoices – where tribunal dismissed claim without reasons – where repayment agreement – where claim of defective work – whether applicant entitled to payment of invoices – whether grounds for leave to appeal

COSTS – where applicant failed to appear at hearing – where respondent did appear at hearing – where respondent travelled considerable distance to appear at hearing – where tribunal ordered applicant pay respondent’s travel costs – where no power to order travel costs

Jimenez v Sternlight Investments t/a LJ Hooker Alexandra Hills[2010] QCATA 29
Pickering v McArthur [2005] QCA 294

APPEARANCES and REPRESENTATION (if any):

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. In 2012, Diverse Industries Australia Pty Ltd did some work on the engine of a diesel truck owned by Cherlocks Pty Ltd. It rendered two invoices, totalling $19,174.53. Cherlocks paid nothing. Diverse filed an application in the tribunal (in the wrong name of Diverse Industries Australia Trust) claiming the amounts invoiced.

2. A Magistrate, sitting as a member of the tribunal in its minor civil disputes jurisdiction, dismissed Diverse’s claim pursuant to sections 48(1)(a) and (g) of the QCAT Act. The learned Magistrate also ordered Diverse pay Cherlocks its costs of appearing at the hearing, fixed at $4,640.

3. Diverse wants to appeal that decision. It says that “the respondent” signed a repayment agreement, so should be required to pay the invoices. It says the tribunal originally made a decision in its favour, so it cannot understand why the decision is wholly reversed. It disputes the order that it pays Cherlocks’ travel expenses.

4. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]

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

   [2][2005] QCA 294 at [3].

5. The learned Magistrate did not give reasons for her decision. The failure to give reasons is a denial of natural justice, which is an error of law for which leave to appeal should be given. The absence of reasons necessarily means that the appeal should be upheld.[3]

   [3]Jimenez v Sternlight Investments t/a LJ Hooker Alexandra Hills[2010] QCATA 29.

6. For the reasons I have given in a related matter,[4] the learned Magistrate’s order that Diverse pay Cherlocks’ costs of attending the hearing should be set aside. The tribunal simply has no power to order these costs.

   [4]Diverse Industries v Calvani Crushing [2014] QCATA 233.

7. Diverse’s argument that Cherlocks should pay the invoices because of a repayment agreement is misconceived. The agreement in evidence is between Diverse and Mr Willocks personally, not between Diverse and Cherlocks, or Diverse and Mr Willocks as director (and on behalf) of Cherlocks.

8. It is clear from Cherlocks’ response that it disputed the quality of, and need for, the work. It produced a report from Dr Edward Brell to support that proposition. Diverse wrote a letter in response to that report but did not commission its own expert evidence.

9. Dr Brell’s report is comprehensive, detailed and compelling. I prefer his evidence over the evidence by way of Diverse’s letter of explanation. I am, therefore, satisfied that Diverse’s work was performed in a way that created the need for further work, or that the work completed was not required by Cherlocks’ initial concerns with the truck. For different reasons, the learned Magistrate’s decision to dismiss Diverse’s claim is confirmed.