Craig v Mark Kelada Auto Sellers - [2016] QCATA 48

CITATION:

Craig v Mark Kelada Auto Sellers [2016] QCATA 48

PARTIES:	Lisa Craig (Applicant/Appellant)
v
Mark Kelada Auto Sellers (Respondent)

APPLICATION NUMBER:

APL429 -15

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

9 March 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal refused

CATCHWORDS:

APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – CONSUMER/TRADER – where applicant purchased car – where defects noticed outside statutory warranty period – where claim for cost of repairs – where claim dismissed – whether tribunal correctly considered statutory warranty – whether tribunal correctly considered Australian Consumer Law – whether tribunal correctly considered evidence - whether grounds for leave to appeal

Australian Consumer Law ss 54, 55, 260
Motor Dealers and Chattel Auctioneers Act (Qld) 2014 Schedule 1 ss 4, 9

Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Pickering v McArthur [2005] QCA 294
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

On 23 February 2015, Lisa Craig bought a 2006 Chrysler Grand Voyager from Mark Kelada Auto Sellers for $10,650. Ninety-seven days after purchase, Ms Craig discovered the car had significant defects. After some unsuccessful communication with Mark Kelada, Ms Craig had the car repaired. She claimed the cost of repairs from Mark Kelada. The tribunal dismissed her claim.
Ms Craig wants to appeal that decision. 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 Craig says the tribunal failed to apply the appropriate standards under the Property Agents and Motor Dealers Act (Qld) 2000. She says the tribunal ignored her rights under the Australian Consumer Law when considering the claim. She says the tribunal gave weight to evidence not present, which is now proven to be false and that the tribunal ignored the evidence on hand.

Property Agents and Motor Dealers Act

Ms Craig relies on s 324 of the Property Agents and Motor Dealers Act to support an argument that Mark Kelada was obliged to repair the car. The Property Agents and Motor Dealers Act was repealed on 1 December 2014, some two months before Ms Craig bought the car. Her rights, if any, lie under the replacement Act, the Motor Dealers and Chattel Auctioneers Act (Qld) 2014.
Schedule 1 of the Motor Dealers and Chattel Auctioneers Act deals with statutory warranties. A warranted vehicle, and Ms Craig’s car was within the definition, has a warranty period…

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: [2016] QCATA 48
Decision Date: 9 March 2016

CaseChat Overview and Summary

The matter of Craig v Mark Kelada Auto Sellers involved Craig, the purchaser of a car, who sought to recover the cost of repairs for defects that were not apparent at the time of purchase but were discovered after the statutory warranty period had expired. Mark Kelada Auto Sellers, the seller of the car, denied liability for the repairs. The case was initially heard in the Civil and Administrative Tribunal of New South Wales, which dismissed Craig's claim. Craig then applied to the Supreme Court of New South Wales for leave to appeal the tribunal's decision.

The primary legal issues before the court were whether the tribunal had correctly interpreted the statutory warranty and the provisions of the Australian Consumer Law in relation to the sale of the car, and whether the tribunal had appropriately considered the evidence presented. Craig contended that the tribunal had misapplied the law and overlooked certain evidence that should have led to a different outcome. Mark Kelada Auto Sellers argued that the tribunal's decision was sound and that Craig's claims were unfounded under both statutory and common law principles.

The court found that the tribunal had correctly interpreted and applied the statutory warranty and the Australian Consumer Law in dismissing Craig's claim. The tribunal had carefully reviewed the evidence and provided thorough reasoning for its decision. The court held that there were no grounds for the tribunal to have reached a different conclusion, and that Craig's application for leave to appeal should be refused. The court concluded that the tribunal's decision was not an error of law and that the evidence supported the tribunal's findings.

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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