Boogs v Missen - [2017] VSC 50

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2016 03285

TRACEY HEIDI BOOGS	Appellant
v
NICOLE MAREE MISSEN	Respondent

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JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 February 2017
DATE OF JUDGMENT:	15 February 2017 (written reasons 22 February 2017)
CASE MAY BE CITED AS:	Boogs v Missen
MEDIUM NEUTRAL CITATION:	[2017] VSC 50

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Victorian Civil and Administrative Tribunal appeal – Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148 - Application for extension of time – Delay in obtaining transcript of hearing – Reasonable attempts made – Leave for extension of time granted – Contract of sale of horse – Whether horse of acceptable quality – Guarantee provisions under s 54 of the Australian Consumer Law (Victoria) – Error by VCAT member in approach to determination of claim – No consideration of whether sale in trade or commerce – Application for leave to appeal and appeal allowed – Orders of VCAT set aside – Remitted to VCAT for rehearing.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms P Marcou	Strategy Property Lawyers
The Respondent appeared in person

HIS HONOUR:

Introduction

In February 2015, Nicole Missen, the Respondent, purchased an ex-racehorse, Rex, from Tracey Boogs, the Appellant, for $7,500 on a terms payment arrangement, which included an upfront payment of $5,000.

Within a couple of months Rex had gone sore and Ms Missen wanted her money back and to return Rex to Ms Boogs. A lengthy and acrimonious dispute ensued culminating in a hearing at the Victorian Civil and Administrative Tribunal (‘VCAT’) at Geelong on 8 December 2015. The tribunal was constituted by a single member. Ms Missen was successful, essentially on the basis that Ms Boogs had breached a statutory guarantee, provided by s 54 of the Australian Consumer Law (Victoria) (‘ACL’).[1]
[1]By virtue of s 8 of the Australian Consumer Law andFair Trading Act2012 (Vic) the Australian Consumer Law (contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth)) forms part of Victorian Law.

The VCAT Member ordered that Ms Boogs pay Ms Missen just short of $6,000 and the filing fee. Ms Boogs’ claim for payment of the balance owing was dismissed.

But that was not the end of the matter. Ms Boogs, in August 2016 (some seven months out of time) issued an originating motion in this Court seeking leave to appeal the decision of the member under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’).

Notwithstanding my pleas to the parties that they endeavour to resolve this matter, I heard and determined the application for extension of time, leave to appeal and appeal on 15 February 2017. I gave ex tempore reasons and now provide a slightly more fulsome exposition of those reasons.

In essence, I concluded that there was a reasonable basis upon which to grant the extension of…

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.

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Details

Case: [2017] VSC 50
Decision Date: 15 February 2017 (written reasons 22 February 2017)

CaseChat Overview and Summary

The parties involved in the Boogs v Missen case were the applicant, Mr. Boogs, and the respondent, Missen. The nature of the dispute was centred around a contract of sale of a horse, with Mr. Boogs alleging that the horse was not of acceptable quality, and Missen contending otherwise. The matter was originally heard by the Victorian Civil and Administrative Tribunal (VCAT) and subsequently appealed to the Supreme Court of Victoria.

The primary legal issues that the court had to decide were whether the horse was of acceptable quality under the Australian Consumer Law, and whether the VCAT member had erred in their approach to the determination of the claim. Additionally, the court needed to consider whether reasonable attempts had been made by Mr. Boogs to obtain a transcript of the VCAT hearing within the prescribed time period, which would entitle him to an extension of time for his appeal.

The court found that the VCAT member had indeed erred in their approach to the determination of the claim by not considering whether the sale was in trade or commerce. This error was significant because the applicability of the Australian Consumer Law depended on whether the sale was a commercial transaction. Furthermore, the court held that Mr. Boogs had made reasonable attempts to obtain a transcript of the VCAT hearing, and thus he was entitled to an extension of time. As a result, the application for leave to appeal and the appeal were allowed, the orders of VCAT were set aside, and the matter was remitted to VCAT for rehearing.

Orders