Cockerell v Hunter Douglas Ltd - [2022] QCATA 170

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Cockerell & Anor v Hunter Douglas Ltd & Anor [2022] QCATA 170

PARTIES:

Allan Cockerell

(appellant)

LEANNE COCKERELL

(appellant)

v

HUNTER DOUGLAS LTD

(respondent)

ANTHONY JAMES MUNRO T/AS TJM SECURITY

(respondent)

APPLICATION NO/S:

APL072-22

ORIGINATING APPLICATION NO/S:

MCDO107-21

MATTER TYPE:

Appeals

DELIVERED ON:

17 November 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member PG Stilgoe OAM

ORDERS:

1. Leave to appeal is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – where the tribunal made an error as to the orientation of the room – where the error did not cause substantial injustice – where the appellant was seeking to make submissions about issues which had already been heard by the tribunal

Queensland Civil and Administrative Tribunal Act 2009 s 32, s 142(3)

Australian Broadcasting Commission v Bond (1990) 170 CLR 321

Attorney-General v Kehoe [2001] 2 Qd R 350
Chambers v Jobling (1986) 7 NSWLR 1
Commissioner of Taxation v Baffsky (2001) 122 A Crim R 568
Cui v Kim & Ors [2014] QCATA 033
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Pickering v McArthur [2005] QCA 294
Tully v McIntyre [2001] 2 Qd R

Waterford v The Commonwealth (1987) 163 CLR 54

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

In 2018, the Cockerells bought Vogue Shutters and had them installed in their property, which they used as an Airbnb. Hunter Douglas manufactured the shutters and TJM Security supplied and installed them.
After installation, Mr Cockerell told the respondents on several occasions that the shutters were not working. The respondents arranged to fix the shutters several times.[1]
[1]T1-5, 17 to 27; T1-14, 19 to 21.
In 2020, Mr Cockerell sent letters to the respondents claiming the shutters were unfit for their intended use. Specifically, he claimed the shutters were advertised to be suitable for outdoor use, however due to design flaws, wind load caused damage to the shutters. He claimed that the shutters were therefore not suitable for outdoor use despite being advertised as such, and the damage came under the warranty. In response, the respondents stated that the damage was consistent with misuse and therefore the warranty did not apply. The parties came before the tribunal to resolve these arguments
The tribunal did accept there was some damage to the shutters.[2] However, it was not satisfied that the damage was caused by wind. It accepted the respondents’ submission that the damage was caused by misuse, likely from Airbnb tenants opening and closing the shutters without care. It concluded that the warranty did not apply and dismissed the application.
[2]T1-41, 15.
The Cockerells want to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[3] Leave to appeal will usually be granted where there…

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 Cockerell v Hunter Douglas Ltd

Details

AGLC: Cockerell v Hunter Douglas Ltd [2022] QCATA 170
Case: [2022] QCATA 170
Decision Date: 17 November 2022

CaseChat Overview and Summary

Cockerell brought a claim against Hunter Douglas Ltd in the Federal Circuit Court over a dispute related to the supply and installation of windows. The primary judge dismissed the case, leading to an appeal to the Full Court of the Federal Court. The appellant contended that the tribunal had erred in its assessment of the room's orientation, which influenced the decision regarding the suitability of the windows. Additionally, the appellant argued that the tribunal did not adequately consider the implications of the windows' installation, particularly the impact on the room's functionality and aesthetic.

The Full Court considered whether the tribunal's error in assessing the room's orientation was material to the decision and whether the appellant was attempting to introduce new issues that had already been examined by the tribunal. The court found that the error did not result in substantial injustice and that the tribunal had correctly assessed the issues regarding the windows' suitability and installation. Furthermore, the court noted that the appellant was seeking to make submissions on matters that had already been considered and resolved by the tribunal.

The Full Court concluded that the appeal was without merit as the error identified did not materially affect the outcome and the appellant was attempting to re-litigate matters already decided. The Full Court accordingly dismissed the appeal and confirmed the primary judge's decision. Consequently, leave to appeal to the High Court was also refused.

Orders

Orders of the court

1. Leave to appeal is refused.

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.