CITATION: Singh v Worner Electrical Industries [2010] QCATA 83

PARTIES: Mr Ram Kumar SINGH and Mrs Anshu

Raghuwanshi SINGH (Appellants)

Worner Electrical Industries

(Respondent)

APPLICATION NUMBER: APL082-10

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Judge Fleur Kingham Deputy President

DELIVERED ON: 17 November 2010

DELIVERED AT: Brisbane

ORDERS MADE: The application for leave to appeal is dismissed

CATCHWORDS : LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where no new evidence – whether evidence properly considered in primary decision – whether error in primary decision

Building and Construction Industry Payments Act 2004 ss 10, 12, 20(a)(i)

Queensland Civil and Administrative Tribunal 2009 ss 28(2), 142(3)(a)(i)

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

REASONS FOR DECISION

[1] This application arises from a dispute between an electrician and the owner of premises in which he performed electrical work.

[2] Worner Electrical Industries (Mr Worner) and Mr Singh entered into a verbal contract, confirmed via email on 3 October 2010, for Mr Worner to carry out electrical work on Mr Singh’s premises at 88 Beaudesert Road Moorooka. The price negotiated was $8,000 (plus GST); $4,000 payable upon completion of pre-wiring and $4,000 payable on completion of the works. No down payment or deposit was provided for.

[3] Mr Worner wrote to Mr Singh on 8 and 9 October 2010 demanding payment of $4,000 for completion of the pre-wiring. On 15 and 16 October 2010 Mr Worner again wrote to Mr Singh requesting payment and informing him that work in progress would be stopped until the payment was received.

[4] Payment was not forthcoming. Mr Worner made a claim in the Minor Civil Dispute jurisdiction of this Tribunal for payment of the debt. In response, Mr Singh made a counter claim for rectification of defective work and associated damages. The matter was heard on 9 February 2010.

[5] Mr Singh was ordered to pay Mr Worner $4,400, enforcement suspended until completion of Mr Singh’s counter-claim to be heard at a later date.

[6] The counter claim was heard and dismissed on 6 April 2010. The learned Member ordered Mr Singh to pay Mr Worner the $4,400 within 14 days.

[7] Mr Singh brought an application for leave to appeal that decision. Leave is necessary for a party to appeal to the appeal tribunal against a minor civil dispute.

[8] Mr Singh’s grounds for leave to appeal are, in summary:

(a) Mr Worner’s claim for the progress payment should not have succeeded because the work carried out by Mr Worner was defective.

(b) The Tribunal ignored section 14(1)(b)(iv) of the Building and Construction Industry Payments Act 2004 by failing to take into account the cost of rectifying defective work when making its orders.

[9] QCAT is bound to act fairly in each proceeding and determine every matter according to the substantial merits of the case. An appellate tribunal will not disturb the findings of fact of the primary decision-maker unless persuaded they lacked an evidentiary basis, or were affected by some other error of law.

[10] The learned Member concluded the work carried out by Mr Worner was in progress and, had Mr Worner been able to complete the work, he would have been able to bring any potential deficiencies up to standard. In short, the work was not defective, because it was in progress.

[11] The transcript reveals that in making that, in making that decision, the learned Member considered the following evidence:

(a) The work performed by Mr Worner was in progress;

(b) There was electrical work at the property that independent assessors had stated was defective;

(d) Had Mr Worner been given the opportunity to complete the work, any perceived defects would have been remedied.

[12] In dismissing Mr Singh’s counterclaim the learned Member held:

“…losses have been incurred by Mr Singh which have arisen from a failure to pay progress payments which would have allowed Mr Worner to rectify the work that appeared to be in error…to an extent…they are…of his own making.”

[13] The learned Member thoroughly considered the evidence. Mr Singh’s counterclaim for rectification stemmed from his conclusion that there were defects for which Mr Worner was responsible. The learned Member properly concluded on the evidence before her that the losses incurred by Mr Singh were of his own making.

[14] Mr Worner would only complete the work if the progress payment was made. Mr Singh refused to pay the money until the work was ‘rectified’. As a result Mr Singh incurred losses that the learned Member concluded could have been avoided.

[15] Mr Singh has not raised any issues or provided additional evidence not already considered in the original proceedings. Following careful consideration of the evidence before the Tribunal, the learned Member made her decision. There is no evidence to suggest an error was made.

[16] There is no reasonably arguable case of error in the primary decision. There is no question of general importance or public interest which a decision of an appeal tribunal is called for.

[17] Leave to appeal is refused.