Fabsigns and Designs Pty Ltd v Kunara Tucker Pty Ltd

CITATION:	Fabsigns & Designs Pty Ltd v Kunara Tucker Pty Ltd [2016] QCATA 115
PARTIES:	Fabsigns & Designs Pty Ltd (Applicant/Appellant)
v
Kunara Tucker Pty Ltd (Respondent)

APPLICATION NUMBER:

APL073 -16

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

13 July 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE BREACH AND DEFENCES TO ACTION FOR BREACH – PERFORMANCE – where agreement to provide signs – where one of batch of signs not acceptable – where client paid for all but unacceptable sign – where supplier exercise retention of title rights and removed signs – where client applied for refund of money paid for acceptable signs – where tribunal ordered refund - whether grounds for leave to appeal

Personal Property Securities Act 2009 (Cth) ss 12(2)(d), 21(1)

Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Pickering v McArthur [2005] QCA 294
Central Cleaning Supplies (Australia) Pty Ltd v Elkerton (in his capacity as joint and several liquidator of Swan Services Pty Ltd (in liq)) (2015) 321 ALR 181
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

Kunara Tucker Pty Ltd engaged Fabsigns & Designs Pty Ltd to make signs for its business premises, including a rooftop lightbox sign. Kunara has a particular colour green as its corporate colour. The lightbox sign that Fabsigns supplied and installed was not the corporate green.
From a total invoice of $4,658.50, Kunara paid $3509, refusing to pay for the lightbox. It wanted Fabsigns to fix the lightbox. Fabsigns refused. Because Kunara had not paid the full amount, Fabsigns removed all signs. Kunara applied to the tribunal for an order that Fabsigns refund the money it had paid for the signs. The tribunal ordered Fabsigns refund Kunara’s payments.
Fabsigns 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].
Fabsigns’ grounds of appeal are simple: it finds the decision incorrect, it feels its side of the matter was not correctly understood which led to a decision which, it feels, is unfair.

It is not for the appeals tribunal to find reasons to set aside a decision when the applicant has not bothered to descend to detail about why it is dissatisfied with the decision below. The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[3] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[4]
[3]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[4]Chambers v Jobling (1986) 7 NSWLR 1 at 10.

I have read the transcript and considered the evidence before the tribunal below. The tribunal found that, in failing to provide a light box in Kunara’s corporate colour, Fabsigns did not breach the contract.[5] I do not think the evidence necessarily supports that view but, as the error does not favour Fabsigns, I do not propose to consider it further.
[5]Transcript page 1-33, lines 40 -45

The tribunal also found that Fabsigns could not rely on its retention of title clause to justify keeping Kunara’s payments. Fabsigns’ retention of title clause is comprehensive:

9.1 Title

Notwithstanding the delivery of the Goods or their installation, title in any particular Goods shall remain with the Signwriter until the Client has paid and discharged any and all monies owing pursuant to any invoices issued by the Signwriter for the Goods, including all applicable GST and other taxes, levies and duties…

9.3 Repossession

The Client hereby irremovably grants to the Signwriter the right, at its sole discretion, to remove or repossess any Goods from the Client and sell or dispose of them …

Clause 9 of Fabsigns’ terms and conditions is a security interest within s 12(2)(d) of the Personal Property Securities Act 2009 (Cth). A security interest is only enforceable if it is ‘perfected’ by registration on the Personal Property Securities Register.[6] The tribunal had no evidence that Fabsigns had perfected its security interest. It was therefore entitled to find that the retention of title clause was unenforceable.
[6]Personal Property Securities Act 2009 (Cth) s 21(1); Central Cleaning Supplies (Australia) Pty Ltd v Elkerton (in his capacity as joint and several liquidator of Swan Services Pty Ltd (in liq)) (2015) 321 ALR 181 at [4].

Even though the tribunal’s reasons for decision did not deal with the Personal Property Securities Act, its conclusions were correct.

There is no reasonably arguable case that the tribunal was in error. Leave to appeal should be refused.

The case of Fabsigns and Designs Pty Ltd v Kunara Tucker Pty Ltd involved a dispute between a sign supplier and a client over the supply of signs. The supplier, Fabsigns, had provided a batch of signs to the client, Kunara Tucker, under an agreement. However, one of the signs was not up to the client's satisfaction. Despite this, the client paid for all the signs except the unacceptable one. Fabsigns subsequently exercised its retention of title rights and removed the signs, and the client sought a refund for the signs that met the required standard. The tribunal ruled in favour of the client, ordering Fabsigns to refund the amount paid for the acceptable signs. Fabsigns appealed this decision, seeking leave to appeal to a higher court.

The central legal issues in this case revolved around the contractual obligations of both parties, the principles of discharge by breach, and the client's right to a refund. The court needed to determine whether the supplier had the right to remove the signs under the retention of title clause and whether the client was entitled to a refund for the signs that met the required standard. The tribunal had already ruled that the client was entitled to a refund, but Fabsigns argued that this decision should be reviewed by a higher court.

The court considered the arguments presented by both parties and assessed the tribunal's decision. It examined the terms of the agreement, the nature of the breach, and the application of general contractual principles. The court found that the tribunal had correctly interpreted the agreement and applied the relevant legal principles. The supplier's retention of title clause did not override the client's right to a refund for the acceptable signs, and the tribunal's order was justified. Consequently, the court refused Fabsigns leave to appeal the tribunal's decision.

No further orders were made beyond the refusal of leave to appeal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established