Amind Pty Ltd v FGB Trading Pty Ltd

[2011] QCATA 207

CITATION: Amind Pty Ltd v FGB Trading Pty Ltd [2011] QCATA 207

PARTIES:	Amind Pty Ltd
v
FGB Trading Pty Ltd

APPLICATION NUMBER:            APL183 -11              

MATTER TYPE: Appeals

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Richard Oliver, Senior Member
Peta Stilgoe, Member

DELIVERED ON:   4 August 2011

DELIVERED AT:   Brisbane

ORDERS MADE:       Leave to appeal refused. 

CATCHWORDS : 

MINOR CIVIL DISPUTE – whether grounds for leave to appeal

Dearman v Dearman (1908) 7 CLR 549;

Fox v Percy (2003) 214 CLR 118.

Chambers v Jobling (1986) 7 NSWLR 1

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

Mr Oliver

1. In this matter the Appeal Tribunal consisted of Ms Stilgoe, QCAT Member and me. I have had the benefit of reading her reasons in draft. I agree with her reasons, and her conclusions, and the order she proposes.

Ms Stilgoe

1. Amind Pty Ltd engaged FGB Trading Pty Ltd to source products from China for the construction of maxi taxis. The parties agreed that Amind would pay FGB a deposit of 30% and FGB would secure a sample of the products for Amind’s approval before the entire order would be fulfilled. Amind paid $10,000 deposit and samples were produced. Amind was not happy with the samples and, after some prevarication, terminated the contract. Amind brought a claim for the refund of the deposit; the learned Adjudicator refused its claim.

1. Amind has appealed the learned Adjudicator’s decision on these grounds:

a)    The learned Adjudicator, in his reasons for decision, said that the decision should be fair to both parties but it was not, in fact, fair.

b)    Contrary to the learned Adjudicator’s finding, Amind did not give FGB authority to proceed with manufacture of the balance of the order.

1. Because this is an appeal from a decision of the tribunal in its minor civil dispute jurisdiction, leave is necessary. Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief.  Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?

1. The learned Adjudicator’s finding about whether or not Amind authorised FGB to proceed is irrelevant to the application for leave to appeal. That issue would have been relevant if FGB had pressed a claim for the additional costs it incurred by proceeding with the order pursuant to the authorisation that Amind disputes.

1. As the learned Adjudicator observed, there was no claim in that regard, so he did not make an order that Amind pay FGB for the additional costs. Interestingly, in its submissions in this application, FGB makes the point that it doesn’t think that the learned Adjudicator’s decision about that was fair either, but it is prepared to accept the decision.

1. The learned Adjudicator’s comments about fairness, read in context, articulate his difficulty with a contract that has few agreed terms. Doing the best he could with the facts before him, the learned Adjudicator implied terms into the contract that he thought were fair, having regard to each party’s risk in the transaction.

1. 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.[1] 

   [1]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.

1. An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.[2]  As the High Court said in Fox v Percy:

In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.[3]

[2]        Chambers v Jobling (1986) 7 NSWLR 1 at 10.

[3]        Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.

1. There is nothing in the transcript, or Amind’s submissions in this application, that persuade me that the learned Adjudicator should have taken a different view of the facts.

1. There is no question of general importance that should be determined by the appeals tribunal; there is no reasonably arguable case that the learned Adjudicator was in error; there is no reasonable prospect of substantive relief on appeal; and there is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.