Baker v Botting - [2012] QCAT 648

CITATION:

Baker v Botting [2012] QCAT 648

PARTIES:	Maurice Baker
v
Gordon Botting

APPLICATION NUMBER:

MCDO74-12

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

20 December 2012

HEARD AT:

Wynnum

DECISION OF:

Paul Favell, Member

DELIVERED ON:

21 December 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

The application is dismissed.

CATCHWORDS:

Minor civil dispute – claim for damages because of accident – cause of accident – jurisdiction

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Maurice Baker

RESPONDENT:

Gordon Botting

REASONS FOR DECISION

In November 2011, the applicant verbally agreed with the respondent that he would pay the respondent $1,200 for the manufacture and delivery of a car trailer suitable for transporting a golf buggy. The applicant supplied the wheels and tyres for the trailer. In January 2012 the respondent manufactured and delivered the trailer to the applicant. He was paid for the work done.
On 19 August 2012 whilst the applicant was towing the trailer on the highway near Nudgee transporting his golf cart to the golf course, he heard a loud bang and saw that the axle on the trailer disconnected from the chassis of the trailer. He took the trailer to the respondent who repaired it without charge.
The applicant seeks to claim $861.74 from the respondent on the basis that the axle became disconnected from the chassis of the trailer because of poor workmanship on the part of the respondent.
All of the evidence given with respect to that claim was filed with the application and the applicant told me that he heard a loud bang and then saw the aftermath of whatever happened. There is no evidence as to what happened or any sequence of what happened. I saw photographs of tyres which had been damaged and had cuts or tears in them. There was no other photographic evidence showing the area where the axle became disconnected from the chassis. I was told by the respondent that the axle was hung on the chassis by u-bolts and a standard plate. When he repaired the axle, he saw the axle had come away from its mounting but the u-bolt was still there and the nuts were done up. He told me that if there had been a tyre which had blown, the result of the trailer hitting the ground would be such that the axle could come out of its mounting.
There is no evidence given from any expert as to the cause of the accident nor is there any evidence that any work done by the respondent in constructing the trailer was of poor quality or negligent.
The amount the applicant is claiming is made up as follows.
Two new tyres fitted and balanced and the disposal of the old tyres $410.74
Tow truck   $70.00
The use of a crane  $20.00
Repair of golf cart seat  $250.00
Toll  $16.00
Total  $861.74
The applicant made demand for payment from the respondent and said that when he took the trailer to the respondent’s home for repair, the respondent’s son said that he (the respondent’s son) had told the respondent not to use the springs and said, “they are cheap and no good.” The respondent in his response explains that his son has paranoid schizophrenia and is on an involuntary treatment order and as with many young men with that condition he will blame his father for anything that goes wrong in the world. He has no training in the building of trailers.
The respondent contended that if there was faulty workmanship it should have appeared before nine months of use. He says that the u-bolts were still in the correct position and done up. He disputes that the trailer was in any way constructed with a fault.
On the material before me, I could not be satisfied that there was any fault on behalf of the respondent which caused the incident. There are a number of competing explanations, one of which could be a tyre having blown causing the subsequent loss.
However, in my view this is not a matter that properly fits within the minor civil dispute jurisdiction of this Tribunal.
Pursuant to section 11 of the Queensland Civil and Administrative Tribunal Act 2009, the Tribunal has jurisdiction to hear and decide a minor civil dispute. It may exercise this jurisdiction if a relevant person has under the Act applied to the Tribunal to deal with the dispute.
A relevant person under section 12 means
a)    For a claim to recover a debt or a liquidated demand of money – a person to whom the debt is owed or money is payable; or
b)    Subject to paragraphs (c) – (g), for a claim arising out of a contract between a consumer and a trader – the consumer; or
c)    For a claim arising out of a contract between two or more traders – any of the traders; or
d)    For a claim for payment of an amount for damage to property caused by, or arising out of the use of, a vehicle – a person incurring loss because of the damage; or
e)    For a claim for repair of a defect in a motor vehicle under the Property Agents and Motor Dealers Act 2000 section 248 or 324 – the buyer of the vehicle; or
f)       For a tenancy matter – a person who, under the Residential Tenancies and Rooming Accommodation Act 2008, may apply to the Tribunal for a decision in relation to the matter; or
g)    For a claim that is the subject of a dispute under the Neighbourhood Disputes Resolution Act 2011 – a party to the dispute; or
h)   For a matter under the Building Act 1975, Chapter 8, Part 2A – a person who, under the Building Act 1975, Chapter 8, Part 2A, may apply to the Tribunal for a decision in relation to the matter.
In my view, the only possible relevant definition of relevant person which may apply here is that in paragraph (b) or possibly (d). The trailer is not a motor vehicle under the Property Agents and Motor Dealers Act 2000.
The Schedule to the Act defines a trader as:
“A person who in trade or commerce carries on a business of supplying goods or providing services; or regularly holds himself, herself or itself out as ready to supply goods or provide services of a similar nature”.
In my view it is not shown that the respondent here is a trader. There is no evidence that in trade or commerce he carried on a business of supplying goods or providing services or that he regularly held himself out as ready to supply goods or to provide service of a similar nature.
Further, the definition of minor civil dispute as it appears in Schedule 3 to the Act is “minor civil dispute means – (b) a claim arising out of a contract between a consumer and a trader or a contract between two or more traders, that is –
i)     For payment of money of a value not more than the prescribed amount; or
ii)    For relief from payment of a value not more than the prescribed amount; or
iii)   For performance of work of a value not more than the prescribed amount to rectify a defect in goods supplied or services provided; or
iv)   For a return of goods of a value not more than the prescribed amount; or
v)    For a combination of any two or more claims mentioned above.
In my view, the claim does not arise out of a contract between a consumer and trader, but even if it was such a claim, the claim is not for any of the matters set out above.
If there was a defect in the goods, they have been rectified at no cost.
The claim is in effect for expenses incurred by the applicant because of the incident which occurred on 19 August 2012 while the applicant was travelling to the Nudgee golf course.
For those reasons, I find that the Tribunal does not have jurisdiction in its minor civil jurisdiction to determine this claim made. If it did, I would not be satisfied that the cause of any loss was because of faulty work done by the respondent.
The application is dismissed.