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 41Simonova 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…
Continue reading Benford v One Solomon Pty Ltd
Sign in free to access the full text
- AGLC
- Benford v One Solomon Pty Ltd [2024] QCATA 1
- Case
- [2024] QCATA 1
- Decision Date
CaseChat Overview and Summary
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
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.