Gall v Lakatoi Pty Ltd t/as Maritime Solutions Most Things Nautical
[2014] QCAT 557
•3 November 2014
| CITATION: | Gall & Anor v Lakatoi Pty Ltd t/as Maritime Solutions Most Things Nautical [2014] QCAT 557 |
| PARTIES: | Benjamin Gall Linda Gall (Applicant) |
| v | |
| Lakatoi Pty Ltd t/as Maritime Solutions Most Things Nautical (Respondent) |
| APPLICATION NUMBER: | MCDO26-14 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Adjudicator Bertelsen |
| DELIVERED ON: | 3 November 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application is dismissed for lack of jurisdiction. |
| CATCHWORDS: | Consumer application – definition of trader in the QCAT Act – exceptions disentitling the Tribunal to hear consumer applications – categorisation of a discipline within such exception Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3 Early Property Group Pty Ltd t/as Early Roof Valuers v Cavallaro [2010] QCATA 65 |
APPEARANCES:
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
The applicants Benjamin Gall and Linda Gall filed a minor civil consumer dispute application against Lakatoi Pty Ltd t/as Maritime Solutions Most Things Nautical (Lakatoi) alleging that due to an unsatisfactory pre-purchase inspection by Lakatoi they were put to substantial repair costs to have the vessel made sea worthy in circumstances where had such report been accurate repair costs would not have been incurred. Mr and Mrs Gall claim the cost of repairs.
Mr and Mrs Gall were purchasing a 1992 Chriscraft Crowne 232 Sports Cruiser as their first boat. They were advised to have a pre-purchase marine survey (inspection) carried out on the vessel.
A pre-purchase report was carried out by Lakatoi at a cost to Mr and Mrs Gall of $690. Lakatoi was paid $520. It appears T & S Boat Sales was the selling agent and the entity which instructed Lakatoi to prepare the report. Lakatoi asserts the report was properly prepared on the basis of a non-invasive and non-destructive inspection.
Lakatoi postures and advertises itself as marine surveyors with its director Peter Pope being a member of the International Institute of Marine Surveying.
Lakatoi disputes the jurisdiction of the Tribunal to hear Mr and Mrs Gall’s claim. Whilst Mr and Mrs Gall are undoubtedly consumers Lakatoi is not a trader.
A trader is defined in s 3 of the schedule to the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) as a person who in trade or commerce, inter alia, provides services. However a person is deemed not to be a trader providing those services if in so providing those services ‘the person acts in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce’.
Lakatoi contends that it has been held that lawyers, podiatrists, professional town planners and consultants and valuers are not traders and that Lakatoi falls into the same category. The decision of Early Property Group Pty Ltd t/as Early Roof Valuers v Cavallaro[1] determined that a practicing valuer was not a trader.
[1][2010] QCATA 65.
Does a marine surveyor fall within the exception? In Early’s case the decision of Santow J in Prestia v Aknar[2] offered a working definition of the meaning of a profession. His Honour said:
This would embrace intellectual activity, or manual activity controlled by the intellectual skill of the operator, whereby services are offered to the public, usually though not inevitably for reward and requiring professional standards of competence, training and ethics, typically reinforced by some form of official accreditation accompanied by evidence of qualification.
[2][1996] 40 NSWLR 165 at 22 – 23.
A marine surveyor in the view of the Tribunal falls within that definition. A marine surveyor is a professional and as such falls within the exception i.e. a marine surveyor is a person acting in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce. Such being the case the Tribunal does not have jurisdiction to determine the application.
It appears that Mr and Mrs Gall are not desirous of pursuing their claim in the Magistrates Court at this particular time. Accordingly, the Tribunal’s order will that the application is dismissed for lack of jurisdiction.
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