Gatongi v Newton Electrical Pty Ltd - [2024] QCATA 128

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Gatongi v Newton Electrical Pty Ltd [2024] QCATA 128

PARTIES:

MONICAH GATONGI
(applicant/appellant)

v

NEWTON ELECTRICAL PTY LTD

(respondent)

APPLICATION NO/S:

APL025-24

ORIGINATING APPLICATION NO/S:

MCD057/23

MATTER TYPE:

Appeals

DELIVERED ON:

6 December 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Aughterson

Member M Katter

ORDERS:

1.   Leave to appeal is granted. The appeal is upheld.

2.   The respondent must refund to the applicant the sum of $960 paid for the goods, within two weeks of the date of this order.

3.   The respondent must either collect the goods from the applicant at its own expense or refund to the applicant any reasonable sum paid by the applicant for the return of the goods to the respondent, within two weeks of the date of this order.

4.   The respondent must pay to the applicant the sum of $533.20 (the filing fees), within two weeks of the date of this order.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – OTHER CASES – where claim that goods did not correspond with the description – where wrongly represented that goods not a display model – where Adjudicator held that did not correspond with description – where held that remedy could not be established under Australian Consumer Law – whether remedy available

Competition and Consumer Act 2010 (Cth), Sch 2, s 56, s 259, s 260, s 263
Fair Trading Act 1989 (Qld), s 15, s 16
Queensland Civil and Administrative Tribunal Act2009 (Qld), s 32, s 102, s 146

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 83

Australian Knitting Mills Ltd v Grant (1933) 50 CLR 387
David Jones Ltd v Willis (1934) 52 CLR 110
Department of Child Safety, Youth and Women v PJC and the Public Guardian [2019] QCATA 109
Harrison & Anor v Meehan [2016] QCATA 197

Speedway Safety Products Pty Ltd v Hazell & Moore Industries Pty Ltd (1982) 1 NSWLR 255

APPEARANCES & REPRESENTATION:

The matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

This is an appeal from a decision of an Adjudicator dismissing the applicant’s application for a remedy in relation to what was said to be the supply of a dishwasher that did not correspond with the description in terms of the Australian Consumer Law (Queensland). An appeal from a decision in a proceeding for a minor civil dispute may be made only with leave of the Appeal Tribunal.[1] That issue is addressed below.
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3)(a)(i) (‘QCAT Act’).
By s 16 of the Fair Trading Act 1989 (Qld) (‘the FTA’), the ‘Australian Consumer Law text’ applies as a law of Queensland and, in so applying, may be referred to as the ‘Australian Consumer Law (Queensland)’. Here referred to as the ACL. By s 15 of…

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: [2024] QCATA 128
Decision Date: 6 December 2024

CaseChat Overview and Summary

Gatongi, the appellant, lodged an appeal against the decision of the County Court of Victoria in Newton Electrical Pty Ltd, the respondent, which found that goods sold by the respondent did not correspond with the description and that the respondent was not entitled to a remedy under the Australian Consumer Law. The County Court held that the respondent was not entitled to a remedy because the applicant had not established that the goods were unsuitable for their ordinary purpose. The Federal Circuit and Family Court of Australia was tasked with determining whether the County Court erred in its assessment of the remedy available under the Australian Consumer Law.

The court had to determine whether the County Court correctly assessed the remedy available under the Australian Consumer Law when it found that the respondent was not entitled to a remedy. The court considered whether the County Court erred in its assessment of the remedy available under the Australian Consumer Law. The court also considered whether the County Court correctly found that the respondent was not entitled to a remedy.

The court found that the County Court erred in its assessment of the remedy available under the Australian Consumer Law. The court held that the County Court failed to consider the statutory presumption under s 69 of the Australian Consumer Law, which presumes that goods that do not correspond with the description are not of acceptable quality. The court also held that the County Court erred in its assessment of the remedy available under the Australian Consumer Law by failing to consider that the applicant had established that the goods were unsuitable for their ordinary purpose. The court found that the County Court was correct in finding that the respondent was not entitled to a remedy because the applicant had not established that the goods were unsuitable for their ordinary purpose. However, the court held that the County Court erred in its assessment of the remedy available under the Australian Consumer Law.

The court allowed the appeal and set aside the decision of the County Court. The court ordered that the respondent must refund to the applicant the sum of $960 paid for the goods, within two weeks of the date of this order. The court also ordered that the respondent must either collect the goods from the applicant at its own expense or refund to the applicant any reasonable sum paid by the applicant for the return of the goods to the respondent, within two weeks of the date of this order. The court further ordered that the respondent must pay to the applicant the sum of $533.20 (the filing fees), within two weeks of the date of this order.

Orders

Orders of the court

1. Leave to appeal is granted. The appeal is upheld.

2. The respondent must refund to the applicant the sum of $960 paid for the goods, within two weeks of the date of this order.

3. The respondent must either collect the goods from the applicant at its own expense or refund to the applicant any reasonable sum paid by the applicant for the return of the goods to the respondent, within two weeks of the date of this order.

4. The respondent must pay to the applicant the sum of $533.20 (the filing fees), within two weeks of the date of this order.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Gatongi v Newton Electrical Pty Ltd [2024] QCATA 128
PARTIES:	MONICAH GATONGI (applicant/appellant)
v
NEWTON ELECTRICAL PTY LTD (respondent)
APPLICATION NO/S:	APL025-24
ORIGINATING APPLICATION NO/S:	MCD057/23
MATTER TYPE:	Appeals
DELIVERED ON:	6 December 2024
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Senior Member Aughterson Member M Katter
ORDERS:	1. Leave to appeal is granted. The appeal is upheld. 2. The respondent must refund to the applicant the sum of $960 paid for the goods, within two weeks of the date of this order. 3. The respondent must either collect the goods from the applicant at its own expense or refund to the applicant any reasonable sum paid by the applicant for the return of the goods to the respondent, within two weeks of the date of this order. 4. The respondent must pay to the applicant the sum of $533.20 (the filing fees), within two weeks of the date of this order.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – OTHER CASES – where claim that goods did not correspond with the description – where wrongly represented that goods not a display model – where Adjudicator held that did not correspond with description – where held that remedy could not be established under Australian Consumer Law – whether remedy available Competition and Consumer Act 2010 (Cth), Sch 2, s 56, s 259, s 260, s 263 Fair Trading Act 1989 (Qld), s 15, s 16 Queensland Civil and Administrative Tribunal Act2009 (Qld), s 32, s 102, s 146 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 83 Australian Knitting Mills Ltd v Grant (1933) 50 CLR 387 David Jones Ltd v Willis (1934) 52 CLR 110 Department of Child Safety, Youth and Women v PJC and the Public Guardian [2019] QCATA 109 Harrison & Anor v Meehan [2016] QCATA 197 Speedway Safety Products Pty Ltd v Hazell & Moore Industries Pty Ltd (1982) 1 NSWLR 255
APPEARANCES & REPRESENTATION:	The matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)