Barratt v Agyemang

[2012] QCATA 243

CITATION: Barratt v Agyemang [2012] QCATA 243

PARTIES:	Peter Barratt trading as Brisbane’s Cheapest Commodores (Applicant/Appellant)
v
Luis De Mandford Osei Owusu Agyemang (Respondent)

APPLICATION NUMBER: APL102-12

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Richard Oliver, Senior Member

DELIVERED ON: 29 November 2012

DELIVERED AT: Brisbane

ORDERS MADE: 1.  Leave to appeal refused.

CATCHWORDS:

Minor Civil Dispute – where applicant failed to appear at mediation – no application to reopen – whether the Appeal Tribunal the appropriate forum to consider the substantive defence to the minor civil dispute application

Queensland Civil and Administrative Tribunal Act2009, ss 138, 142(3)

Breezeway Developments Pty Ltd v ADG Hydraulics Pty Lt [2010] QCATA 69

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. Mr Agyemang commenced a proceeding in the minor civil disputes jurisdiction of the Tribunal claiming a refund of money from Mr Barratt after purchasing a Ford Transit Van from him in 2010.  Mr Agyemang contended that the vehicle was not fit for the purpose and had major defects.  The alternate claim is for the cost of repairs.  The total amount claimed is $23,790.00.

1. In the usual way, the application was listed for a mediation in the Tribunal on 5 March 2012.  There was no appearance by Mr Barratt or his representative and the matter was then referred to the Tribunal to make a decision on the applicant’s claim.  A Tribunal Adjudicator heard from Mr Agyemang, considered the documents produced and ordered that Mr Barratt pay to him $2,885.00.  That sum represented the amount that Mr Agyemang had paid off the vehicle.  The learned Adjudicator also cancelled the contract for the purchase of the vehicle to give affect to the claim for relief from payment of any further money for the vehicle.  The learned Member was satisfied that the contract had been breached because the vehicle sold to the respondent by Mr Barratt was not fit for purpose and ordered that the contract be “cancelled”.

1. Mr Barratt filed an application for leave to appeal or appeal from that decision and attached to it the documents relevant to the purchase of the vehicle.  Leave, or permission, to appeal is necessary as this is an appeal from a minor civil dispute proceeding.[1]  In the application Mr Barrratt provided an explanation about why he did not attend the Tribunal saying there being a mix up in dates.  It also asserted that Mr Barratt’s company was also prepared to install a new motor in the vehicle and therefore he would not suffer any loss.

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

1. Essentially what Mr Barratt is asking for in the appeal documents is that he be given an opportunity to attend the Tribunal and establish that he has sold a vehicle “of standard”.  However, he has not identified any way in which the adjudicator fell into error.  Rather, he would prefer a different outcome to that reached at the hearing.

1. The reasons for Mr Barratt’s non-attendance at the hearing are pertinent to an application to reopen a proceeding under section 138 of the QCAT Act. A party can apply to reopen the proceeding if the party did not attend the hearing and had a reasonable excuse for not doing so. An administrative error of the type referred to by Mr Barratt is not usually a basis upon which a reopening would be ordered because, as was said in Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69:

In the context of the legislation and the demands upon public resources like those which fund QCAT it is not unreasonable to impose, upon a party, an expectation and an obligation that it will ensure it acts in its own best interest, or accept the consequences; and that mistakes like those made here, while attracting sympathy, can no longer prevail over statutory and practical constraints on the available resources for dispute resolution.

When these matters are appreciated, it will be seen that a party’s own fundamental error in misreading a document cannot be categorised as a “reasonable excuse” for the purpose of revisiting proceedings which were otherwise correctly and legitimately brought to an end.

1. In coming to the decision that he did the learned Adjudicator took evidence from Mr Agyemang, referred to the documents produced including the papers from the finance company, Syndicate VT 29 Pty Ltd, and made a final decision.

1. The Appeal Tribunal will ordinarily only grant leave to appeal 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 was entitled to proceed in the absence of Mr Barratt under s 93 of the QCAT Act. The grounds set out in the application for leave to appeal or appeal do not identify and error and therefore leave to appeal should be refused.