Behan v Wechsels Auto Services

[2010] QCATA 67

CITATION: Behan v Wechsels Auto Services [2010] QCATA 67

PARTIES:	Mr Jeffrey Kenneth Behan (Applicant/Appellant)
v
Wechsels Auto Services (Respondent)

APPLICATION NUMBER:            APL090-10               

MATTER TYPE: Appeal

HEARING DATE:   On the Papers

HEARD AT:   Brisbane

DECISION OF: Judge Fleur Kingham
Deputy President

DELIVERED ON:   4 November 2010

DELIVERED AT:   Brisbane

ORDERS MADE:

1.    Leave to appeal is granted. 

2.    The appeal is upheld. 

3.    Childers Minor Civil Dispute claim1/10 must be returned to the Childers Registry of QCAT so that the matter may be heard.

CATCHWORDS : 

APPEAL – APPLICATION FOR LEAVE TO APPEAL – MINOR CIVIL DISPUTE – JURISDICTION – Trader/Consumer claim

Queensland Civil and Administrative Tribunal Act 2009 ss11, 12(1), (4), 142(3)(a)(i)

REASONS FOR DECISION

1. Mr Behan commenced proceedings before QCAT to recover a sum of $6,809.70 from the respondent. That sum was comprised of sums paid by Mr Behan to Wechsels Auto Services for work done on a motor and damages for the costs to rebuild the motor to its original condition. When the matter came on before the Magistrate sitting as a member of QCAT in Childers his Honour refused to hear the matter and endorsed the application as discontinued.  Mr Behan has applied to appeal that decision.

1. An appeal may only be brought against a decision in a proceeding for a Minor Civil Dispute with leave[1]. Leave will normally only be granted where there is a question of importance or where an error is evident.

   [1]Queensland Civil and Administrative Tribunal Act 2009 s 142(3)(a)(i)

1. In this case, Mr Behan complains that he was not given an opportunity to state his case before his Honour. Whilst he has not formulated his appeal in these terms, his application does raise the question of whether his Honour was right to refuse to hear the matter.

1. QCAT has jurisdiction to hear and decide a Minor Civil Dispute[2]. QCAT may exercise that jurisdiction if a relevant person has applied to the Tribunal to deal with the dispute[3]. A relevant person for a claim arising out a contract between a consumer and a trader is a consumer[4]. A trader is a person who carries on a business of supplying goods or providing services[5]. The respondent appears to fulfil the definition of trader. Mr Behan, its customer, appears to fulfil the definition of a consumer.

   [2]Queensland Civil and Administrative Tribunal Act 2009 s 11

   [3]Queensland Civil and Administrative Tribunal Act 2009 s 12(1)

   [4]Queensland Civil and Administrative Tribunal Act 2009 s 12(4)

   [5]Queensland Civil and Administrative Tribunal Act 2009 Schedule 3 definition of trader a(i)

1. His Honour stated the matter was beyond the jurisdiction of the Tribunal because the claim was unliquidated.

1. It may be that his Honour had in mind one aspect of the definition of Minor Civil Dispute which refers to a claim to recover a debt or liquidated demand of money[6]. The definition of a Minor Civil Dispute also includes a claim arising out of a contract between a consumer and a trader for payment of money of a value not more than the prescribed amount; performance of work of a value not more than the prescribed amount to rectify a defect in goods supplied or services provided;[7] and a construction of the two.

   [6]Queensland Civil and Administrative Tribunal Act 2009 Schedule 3 definition of Minor Civil Dispute 1(a)

   [7]Queensland Civil and Administrative Tribunal Act 2009 Schedule 3 definition of Minor Civil Dispute 1(b)(i)(iii)(v)

1. Mr Behan’s claim demands the return of money already paid and the payment of what he says will be the cost of rectifying damage allegedly caused to his motor by the respondent.  Both are within the jurisdiction of QCAT.

1. His Honour noted the claim was discontinued but it is evident from the transcript that this flowed from his announcement that QCAT could not hear the claim. That conclusion is wrong.  Leave to appeal should be granted. Neither party has had the opportunity to put their case.  Both are located in Childers, as are the witnesses they wish to call.  In the circumstances the appropriate order is to grant leave to appeal, allow the appeal and return the matter to the Childers Registry of QCAT so the application may be heard.