Cogan v Pau - [2014] QCATA 304

CITATION:

Cogan v Pau [2014] QCATA 304

PARTIES:	Cheryl Cogan (Applicant/Appellant)
v
Maria Pau (Respondent)

APPLICATION NUMBER:

APL339-14

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

3 November 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where contract for personal coaching – where applicant terminated contract early – where claim for payment – where tribunal ordered payment – whether breach of consumer guarantees – where whether grounds for leave to appeal

Australian Consumer Law ss 3(3), 60, 61, 62, 268

Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Bunnings Group Ltd v Laminex Group Ltd [2006] FCA 682
Pickering v McArthur [2005] QCA 294
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
Chambers v Jobling (1986) 7 NSWLR 1

APPEARANCES and REPRESENTATION (if any):

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

In November 2013, Ms Cogan signed up for a Coaching with Substance program and Recovery Coach Training with Ms Pau. The cost of the two programs was $2,990 and Ms Cogan agreed to pay that by monthly instalments of $100.
Ms Cogan started the program and then decided it did not suit her needs. She had paid only two instalments of $100. Ms Pau discounted the coaching fees from $2,990 to $1,246 to reflect that part of the course in which Ms Cogan participated. Ms Cogan refused to pay. Ms Pau filed an application in the minor civil disputes jurisdiction of the tribunal. Two Justices of the Peace, sitting as the tribunal, ordered Ms Cogan pay Ms Pau $960.
Ms Cogan wants to appeal that decision. She disputes the learned Justices’ findings of fact. She says that the learned Justices failed to apply the Australian Consumer Law. She feels she had no right of reply during the hearing. She refers to the fact that the tribunal ‘made no set date’ or suggest that the parties come to an agreement. Ms Cogan wants a rehearing of the dispute with witnesses.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
[1]QCAT Act s 142(3)(a)(i).
[2]Pickering v McArthur [2005] QCA 294 at [3].

Ms Cogan has filed fresh evidence with her submissions to the appeal tribunal. The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Ms…

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: [2014] QCATA 304
Decision Date: 3 November 2014

CaseChat Overview and Summary

The case of Cogan v Pau involves a dispute over a contract for personal coaching services. The respondent, Cogan, entered into a contract with the applicant, Pau, for personal coaching. However, Cogan terminated the contract early, and a claim for payment was subsequently made by Pau. The matter was heard by the tribunal, which ordered Pau to be paid the outstanding amount. Pau now seeks leave to appeal against the tribunal's decision, arguing that the contract breached consumer guarantees and that there are grounds for an appeal. The central legal issue before the court was whether there were sufficient grounds to grant leave to appeal the tribunal's decision. The court considered the arguments presented by Pau regarding the alleged breach of consumer guarantees and the merits of the case. The court concluded that there were no grounds for leave to appeal and dismissed the application. The reasoning of the court was based on the fact that the tribunal had carefully considered the evidence and arguments presented by both parties and had made a decision that was not manifestly erroneous or unjust. The court found that the tribunal's decision was well-reasoned and supported by the evidence. Therefore, the court refused leave to appeal. This decision highlights the importance of careful consideration of the evidence and arguments presented in tribunal hearings, as well as the need for a strong case to be made for leave to appeal.

Orders

Orders of the court

1. Leave to appeal refused.

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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