Amos v Memmotts Repco Auto Service

[2012] QCATA 232

CITATION: Amos v Memmotts Repco Auto Service [2012] QCATA 232

PARTIES:	Edward Amos (Applicant/Appellant)
v
Memmotts Repco Auto Service t/as Exego Pty Ltd (Respondent)

APPLICATION NUMBER: APL070-12

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Richard Oliver, Senior Member

DELIVERED ON: 19 November 2012

DELIVERED AT: Brisbane

ORDERS MADE: Leave to appeal is refused.

CATCHWORDS:

Minor Civil Dispute – where applicant contends respondent is not complying with Tribunal order – where applicant seeks a rehearing

Queensland Civil and Administrative Tribunal Act2009, s 142(3)

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. On 14 November 2011, Mr Amos commenced a proceeding in the minor civil disputes jurisdiction of the Tribunal claiming relief from having to pay an invoice for $2,799.00 in respect of repair work carried out to his Nissan Patrol by Memmotts Repco Auto Service.

1. In a letter to Memmotts dated 8 November 2011, Mr Amos sets out a litany of complaints about the service provided by Memmotts which formed the basis of his application for relief from payment of their account.  It is not necessary to detail those complaints here.  The application was defended by Memmotts and ultimately it came on for hearing before a Tribunal Adjudicator on 31 January 2012.  After hearing evidence from both parties and considering Memmotts’ accounts for the work done, the learned Adjudicator reduced Memmotts’ invoiced amount from $3,749.00 down to $1,874.50.  The order he made was that upon Mr Amos paying to Memmotts $1,874.50 Memmotts would deliver Mr Amos’ vehicle “in final discharge of the application”.

1. When Mr Amos did not pay the account, Memmotts retained the vehicle by way of a lien for the work done. 

1. Subsequent to that order being made, Mr Amos filed an application for leave to appeal or appeal on 24 February 2012.  In the part of the application where Mr Amos is required to set out his grounds of appeal, he makes reference to a document marked A.  That document is a narrative of what has occurred subsequent to the order being made by the Tribunal on 31 January 2012.

1. Immediately after the hearing, on 1 February 2012, Mr Amos attended Memmotts and tendered $1,874.50 in cash in exchange for his vehicle.  Because of the difficulties Mr Memmott had experienced in dealing with Mr Amos, he asked Mr Amos to sign a Deed of Discharge before he would hand over the vehicle.  Mr Amos refused to do so and he left the premises without the vehicle but with the cash.

1. Mr Memmott then applied to the Tribunal for an order that Mr Amos sign the Deed of Discharge before he was obliged to release the vehicle.  That application was refused.

1. Mr Amos registered the Tribunal’s decision with the Magistrates Court and an Enforcement Hearing Summons was issued by the Court.  Subsequent to serving the notice on Mr Memmott, Mr Amos again attended the garage to collect the vehicle and says he noticed oil leaking from the vehicle and it was parked in a no standing zone which obviously concerned him because the vehicle may have been towed.  Mr Amos took possession of the vehicle and then had it inspected by the RACQ.  A report by the RACQ effectively says that the vehicle was unroadworthy.

1. On the basis of this history of events subsequent to the hearing Mr Amos seeks an order from the Appeal Tribunal that the order made on 31 January 2012 be struck out. 

1. It is obvious that Mr Amos misconceives the function of the Appeal Tribunal when considering an appeal from a minor civil dispute.  Firstly, for the appeal to proceed Mr Amos must obtain the Tribunal’s leave or permission before the substantive appeal will be considered.[1]  Leave to appeal will 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] QCAT Act, s 142(3).

1. Mr Amos in his submissions and in his application does not attempt to identify any error on the part of the learned Adjudicator.  What he is trying to achieve through the appeal process is to reagitate those matters that the Tribunal has already made a decision on.  In other words, he is asking the Appeal Tribunal to consider the evidence that the repairs have not been carried out in a proper and workmanlike manner, the vehicle is not roadworthy, and for the Appeal Tribunal to make a decision on the new evidence he has produced.

1. I should also say that all of the allegations raised by Mr Amos are contested in affidavits from Memmotts, the strong inference being that Mr Amos has manufactured the case he now puts before the Appeal Tribunal.  In any event, it is unnecessary for me to decide these factual issues in dispute in this application for leave to appeal.

1. Mr Amos has not attempted to identify any error on the part of the learned Adjudicator in the original decision and having read the transcript of evidence and his reasons, none is apparent which would warrant the intervention of the Appeal Tribunal to vary the order already made.  In the circumstances leave to appeal is refused.