Benford v One Solomon Pty Ltd - [2024] QCATA 1

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Benford v One Solomon Pty Ltd [2024] QCATA 1

PARTIES:

SUSAN BENFORD

(applicant/appellant)

v

ONE SOLOMON PTY LTD

(respondent)

APPLICATION NO/S:

APL380-23

ORIGINATING APPLICATION NO/S:

MCDO29/23 (Cleveland)

MATTER TYPE:

Appeals

DELIVERED ON:

5 January 2024

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

1. The application to stay a decision is granted. The decision in MCDO29/23 (Cleveland) made 12 October 2023 is stayed pending the outcome of the application for leave to appeal or appeal.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – application for leave to appeal or appeal a minor civil dispute decision – consumer dispute – whether to stay the decision – where section 54 of the Australian Consumer Law misapplied – where stay granted based upon apparent error of law

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 58, s 143, s 145

Cachia v Grech [2009] NSWCA 232

Cooks Construction Pty Ltd v Stork Food Systems Aust Pty Ltd [2008] 2 Qd R 453
Day v Humphrey [2017] QCA 104
Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
Hessey-Tenny & Anor v Jones [2018] QCATA 131
Medtel Pty Ltd v Courtney (2003) 130 FCR 182
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

Simonova v Department of Housing and Public Works [2018] QCA 60

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

What is this application about?

Ms Benford was unhappy with the quality of curtains installed in her home by the respondent, One Solomon Pty Ltd and refused to pay for them. On 12 October 2023 the Tribunal below ordered Ms Benford to pay One Solomon Pty Ltd the sum of $11,495.46 for the cost of curtains, interest, and the filing fee (‘the decision’).
Ms Benford wants to appeal the decision, but to do so, leave is first required.[1] She wants the decision stayed pending the outcome of her application for leave to appeal and, if granted, the appeal. I have stayed the decision for the reasons that follow.
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 143(3) (‘QCAT Act’); Application for leave to appeal or appeal filed 16 November 2023.

Legislative framework

Under section 145(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) the Appeal Tribunal may make an order staying the operation of a decision of the Tribunal below until the appeal is finally decided. However, there is no appeal until and unless leave to appeal has been granted where required.
Section 58(1) of the QCAT Act however permits the Appeal Tribunal to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Benford v One Solomon Pty Ltd

Details

AGLC: Benford v One Solomon Pty Ltd [2024] QCATA 1
Case: [2024] QCATA 1
Decision Date: 5 January 2024

CaseChat Overview and Summary

In the matter of Benford v One Solomon Pty Ltd, the appellant sought to challenge a decision made by a consumer dispute tribunal. The respondent, One Solomon Pty Ltd, was involved in a consumer dispute with the appellant. The dispute centred on an alleged breach of the Australian Consumer Law (ACL). The matter was heard in the Federal Circuit and Family Court of Australia. The appellant argued that the tribunal had erred in its application of section 54 of the ACL, which pertains to misleading or deceptive conduct. The appellant contended that the tribunal had misapplied the law, leading to an unjust outcome.

The court was required to determine whether the alleged error of law was significant enough to warrant a stay of the tribunal's decision pending the outcome of the appeal. The court also had to consider whether the error was apparent on the face of the record, which would allow for the granting of leave to appeal. The central issue was whether the tribunal's decision contained an error of law that was both apparent and material, justifying a stay under the relevant provisions of the law.

The court found that the error in the application of section 54 of the ACL was indeed apparent on the face of the record. The tribunal had misinterpreted the legal test for misleading or deceptive conduct, which was a fundamental error affecting the outcome of the case. The court determined that this error warranted a stay of the tribunal's decision pending the outcome of the appeal. Consequently, the court granted the application to stay the decision in MCDO29/23 until the appeal process was concluded. This decision ensures that the appellant's right to a fair hearing is preserved and that the potential error of law is rectified before the matter is finally determined.

Orders

Orders of the court

1. The application to stay a decision is granted. The decision in MCDO29/23 (Cleveland) made 12 October 2023 is stayed pending the outcome of the application for leave to appeal or appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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