Coelho v Arth Enterprises Pty Ltd t/a Brisbane Bike Rental

[2024] QCATA 112

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:	Coelho & Anor v Arth Enterprises Pty Ltd t/a Brisbane Bike Rental [2024] QCATA 112
PARTIES:	JOSE FLAVIO GUERRA MACHADO COELHO (appellant)
v
ARTH ENTERPRISES PTY LTD TRADING AS BRISBANE BIKE RENTAL (respondent)
APPLICATION NO:	APL182-23
MATTER TYPE:	Appeal
DELIVERED ON:	11 September 2024
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Judicial Member WA Isdale
ORDERS:	1.   Leave to appeal refused.
CATCHWORDS:	Pickering v McArthur [2005] QCA 294
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) (QCAT Act)

REASONS FOR DECISION

1. Mr Coelho and Mrs Kath Elizabeth Ruth McConnell brought a matter to QCAT for resolution concerning a battery-powered bicycle, The matter was heard by an Adjudicator between 2:03pm and 2:58pm on 24 May, 2023. The Adjudicator gave a decision after hearing from the parties and the reasons are recorded in the 16-page transcript. The application was dismissed.

2. Mr Coelho has applied for leave to appeal that decision. There is no application for leave to rely upon additional evidence in accordance with the Directions made by QCAT on 7 July, 2023.

3. Section 142(3)(a)(i) of the QCAT Act requires that in cases such as this, leave to appeal must be obtained. In the usual course, leave would be granted where it appears that there is a reasonable argument that there has been an error made by the learned Adjudicator and an appeal would be necessary to correct a substantial injustice to the applicant, Mr Coelho, which that error caused.[1]

   [1]Pickering v McArthur [2005] QCA 294 [3].

The essential facts

1. The dispute arose consequent to the purchase of an electric-powered bicycle from the respondent company. It was not an inexpensive product, costing $2,200. Its power is described as 750 watts, three times that able to be used legally on the public roads in this State. As such, its lawful use is limited to private property. There is no suggestion that it was used other than as permitted by law.

2. The bicycle was purchased in March, 2021 and used until April, 2022. It was then stored while Mr Coelho was out of Australia from about April to October, 2022.

3. In November, 2022 Mr Coelho complained to the respondent about rusting of parts of the bike, such as the forks and the gears.

4. Mr Coelho sought a full refund or repair of the corroded parts of the bicycle. The grounds of appeal incorrectly state that a refund was not sought. Page 3 of the QCAT application shows that this claim was made to QCAT.

5. The learned Adjudicator found that the time elapsed exceeded the reasonable time in which a claim could be allowed under Australian Consumer Law. The Adjudicator also found that the corrosion was attributable to lack of proper maintenance. Accordingly, the application was dismissed.

6. The application for leave to appeal shows that what is now being sought is that the respondent pay $1,165 to Mr Coelho, comprising $825 for the repairs to the bicycle and the balance being for losses, travelling costs and QCAT fees.

7. There are 12 grounds of appeal. They are most effectively able to be considered in terms of their content, rather than numerically.

Grounds of appeal

Not fit for purpose

1. The focus here is put on the broken gears, cassette, deep rust in the wheels and corrosion on the forks.

2. Mr Coelho is a mechanical engineer.[2] He received a fair opportunity to put his case before the Adjudicator and did so. His complaint that the focus of the questions at the hearing were related to rusty material and that the broken transmission was overlooked at the hearing does not reflect on the quality of the hearing provided by the Adjudicator but on the choices made by Mr Coelho as to the conduct of his case.

   [2]T 1-11, line 12.

Misrepresentation about quality: bicycle not of acceptable quality

1. The evidence before the Adjudicator, which was accepted by that decision-maker, was that there was inadequate maintenance which led to the condition of the bicycle. It was open to the Adjudicator to make this finding on the evidence provided at the hearing.

2. The Adjudicator properly took into account the length of time in which Mr Coelho possessed the bicycle before making the consumer claims about it. Mr Coelho emphasises that the matters he refers to in the grounds of appeal were overlooked when his case was decided. This does not demonstrate an error by the learned Adjudicator but a choice by Mr Coelho made at the hearing about how he would present his case. This applies equally to his expertise and knowledge.

Unfair contract

1. This is said to have been overlooked at the hearing. It was not overlooked by the Adjudicator. Mr Coelho did not present such a case at the hearing.

Application of the Australian Consumer Law

1. The learned Adjudicator correctly identified and applied the requirement that the claim needed to be made in a reasonable time. No error has been shown here.

Vendor did not participate in the mediations

1. This is not relevant to the conduct of the hearing by the Adjudicator.

Misleading warranty period

1. The evidence given by Mr V. Sharma for the respondent discussed what parts were covered by warranty in the context of corrosion.[3] The Adjudicator asked Mr Sharma about the actual terms of the warranty.[4] The respondent did not resist the claim on the basis that the warranty has expired by the passage of time. Accordingly, this ground of appeal is not helpful to Mr Coelho.

   [3]T 1-6, lines 13 to 20.

   [4]T 1-8, lines 16 to 17.

Misleading conduct as to the nature of goods

1. There was no claim by Mr Coelho that he sought to buy a bicycle that was able to be legally used on the roads. Mr Sharma gave evidence that it could not be legally used on the roads.[5] When asked by the Adjudicator to respond to that, Mr Coelho said nothing about that and referred to the corrosion and broken gears.[6] It was not part of the case put before the Adjudicator that the bicycle was not able to be legally used on the roads. Accordingly, the Adjudicator did not overlook this matter; it was not part of the case brought before QCAT for hearing.

   [5]T 1-6, lines 13 to 39.

   [6]T 1-6, line 41 – T 1-7, line 10.

Conclusion

1. Consideration of the material in the proposed grounds of appeal does not disclose the existence of an error that would justify granting leave to appeal so such leave must be, and is, refused.

   Orders

2. Leave to appeal refused.