D C Motors Gladstone t/as Gladstone Nissan & Hyundai v Tucker

[2017] QCATA 114

CITATION: D C Motors Gladstone t/as Gladstone Nissan & Hyundai v Tucker [2017] QCATA 114

PARTIES:	D C Motors Gladstone t/as Gladstone Nissan & Hyundai (Applicant/Appellant)
v
Tara Tucker (Respondent)
APPLICATION NUMBER:		APL269-17

MATTER TYPE: Application and Appeals

HEARING DATE: 4 October 2017

HEARD AT: Brisbane

DECISION OF: Justice Carmody

DELIVERED ON: 17 October 2017

DELIVERED AT: Brisbane

ORDERS MADE:

THE APPEAL TRIBUNAL ORDERS THAT:

1.     The application for leave to appeal or appeal is refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL  –  MINOR CIVIL DISPUTE – where respondent purchased car unfit for purpose – where the alleged mechanical defect was unobserved by car dealership mechanics – where the applicant must demonstrate arguable case of error or substantial injustice – where leave is refused

APPEARANCES and REPRESENTATION (if any):

APPLICANT/APPELLANT:     Self-represented
RESPONDENT:   Self-represented

REASONS FOR DECISION

1. This is an application for leave to appeal a tribunal decision ordering the applicant to pay $15,305.70 to the respondent in exchange for the return of a Hyundai i20 (the new car) to resolve a consumer dispute.

2. The respondent’s complaint is that on 14 February 2016 she paid the cost of a new car but bought a lemon that is and never really has been fit for its intended purpose, and despite major repairs (which a new car should not need anyway) the same problem persists.

3. The vehicle was returned to the dealership on 20 March 2016 with a reported problem starting, especially when the engine was cold. Despite testing the car for around 3 months the alleged fault could not be replicated.

4. The dealer conceded an initial problem with low compression but says that the engine was replaced to rectify the problem, free of charge under warranty, and the vehicle returned to the respondent.[1]

   [1]Hearing transcript, 12 June 2017, T1-3: L5-15.

5. The respondent maintains that an unidentified problem has continued even with the replacement engine, and if anything, has worsened.

6. The respondent does admit that every time the car goes back to the workshop it “stops having the issue”.[2]

   [2]Hearing transcript, 14 August 2017, T1-3: L25.

7. The hearing was held over two days on 12 June 2017 and 14 August 2017.  The tribunal encouraged the parties to try and settle their differences in the meantime.

8. Between the two hearing dates the applicant reported that the engine had been revving highly and that the engine stalling remained unrectified.

9. On 14 August 2017 the dealer said that it wanted to eliminate ‘bad fuel’ as the cause but the car “has not been presented to us” since the hearing was adjourned.

10. At T1-7: L5-10 the tribunal found that the consumer-dealer relationship had completely broken down with neither party agreeing with or trusting the other and impliedly accepted that there had been “ongoing issues since the date of purchase” before concluding:

    It seems to me given the number of times that the vehicle has been complained about and the number of times that it’s been looked at for repair and the number of times that repairs have been done and the applicants continue to have problems with the vehicle, that there has been a complete failure of consideration in relation to the vehicle that each party should be put back into the same position they were in prior to the purchase of the vehicle.  I therefore order that the applicants return the vehicle to the respondents within seven days in exchange for a cheque in the sum of $15,305.70.  Okay?  Which is 14,990 plus 315.70. (costs)

11. The applicant complains that the tribunal order was made on insufficient evidence to the point of being unreasonable.

12. The applicant obviously doubts that there ever was a problem with the new car but says, assuming there was, it has now been fixed.

13. Put briefly its case is that no reasonable tribunal could have found in favour of the respondents on the evidence because the problems with the car were not independently verified and, even more compellingly, despite the prolonged periods of time it has spent in the workshop, symptoms of the alleged fault were not found by any mechanic.

14. However, the respondent did not have the onus of proving what was wrong with the new car, just that something made it unsuitable for purpose.  This is not a case where a finding of fact could only be made assisted by expert evidence.

15. The leave issue now is whether the applicant has an arguable case of error or substantial injustice in need of correction on appeal.[3]

    [3]Alesch v Maunz (2000) 203 CLR 172 [50] per Kirby J.

16. The resolution of that question turns on what findings of fact were made, whether they were reasonably open on the evidence and sufficient as a matter of law to support the decision.

17. A decisive inference or final conclusion is open to challenge only if the evidence rationally allows for only one conclusion which the tribunal did not reach.[4]

    [4]Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

18. Whether there is any evidence to support a factual finding or conclusion is a question of law.[5]  Under this ground the question is not whether the finding of fact is unreasonable but whether it was open on the evidence.[6]

    [5]Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 [91].

    [6]Janusauskas v Director of Housing [2014] VSC 650 [36].

19. S v Crimes Compensation Tribunal[7] is authority for the self-evident proposition that a tribunal finding or inference cannot be impeached simply because the losing party considers it to be contrary to the weight of evidence or the appeal tribunal itself disagrees with it.

    [7][1998] 1 VR 83, 91 per Phillips JA.

20. Nor is making different findings of fact or drawing alternative inferences from the competing possibilities other than those argued for by the losing party an error of law unless the decision was irrational, unreasonable or plainly unjust.

21. Mere illogicality in the reasons of a tribunal is not necessarily due to an error of law unless the forensic analysis is so deficient as to demonstrate a failure of logic or reasoning.

22. Otherwise an impugned tribunal decision or order will stand.

23. It is admittedly difficult to understand how a chronic mechanical or electronic defect is only evident to those with a vested economic interest in its existence but corroboration is not required for a probability finding based on direct evidence of an observed fact or event.

24. The tribunal was entitled to make adverse findings against the applicant if reasonably satisfied that the respondent’s version of events was not inherently improbable and preferable to any possible alternative explanation.

25. The applicant has failed to demonstrate a reasonably arguable case of error.

26. Leave is refused accordingly.