Grimes v Steve Smithers Pty Ltd
[2014] QCATA 76
•7 April 2014
| CITATION: | Grimes v Steve Smithers Pty Ltd [2014] QCATA 076 |
| PARTIES: | Nathan Grimes (Applicant/Appellant) |
| v | |
| Steve Smithers Pty Ltd Silversmith Pty Ltd (Respondents) |
| APPLICATION NUMBER: | APL575 -13; APL578 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 7 April 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where car purchased sight unseen – where internet ad that car in excellent condition, registered and roadworthy – where car sold as an unregistered wreck – where contract excluded roadworthy and statutory warranty – where car inspected prior to purchase – where car not in excellent condition – where tribunal dismissed claim for refund of purchase price – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Rules 2009 (Qld) s 83(b) Dearman v Dearman (1908) 7 CLR 549 |
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
Mr Grimes lives in Victoria. In May 2013, he bought a 2009 Landcruiser, sight unseen, from Steve Smithers Pty Ltd. He paid $28,990. Before he bought the car, Mr Grimes had Paul Britten from Silversmith Pty Ltd provide a short mechanical report, at a cost of $120.
When he received the car, Mr Grimes realised it was in very poor condition. He wanted his money back. He filed two claims in the minor civil disputes jurisdiction of the tribunal, one against the seller and another against Mr Brittan’s company. Mr Grimes claimed $20,091.15 from each of them, half his total loss. An Adjudicator dismissed both applications.
Mr Grimes wants to appeal that decision. He says that the learned Adjudicator did not correctly identify the terms of his agreement with Steve Smithers. He says the learned Adjudicator came to some erroneous conclusions: that Mr Grimes did not intend to buy a car that was roadworthy or fit to drive and that he was prepared to accept any and all defects because he bought it at a reduced price. He says the learned Adjudicator erroneously implied that Mr Grimes was prepared to accept any and all defects because he bought the car at a reduced price. He says the learned Adjudicator did not consider the issues of express and implied representations, misleading and deceptive conduct or breach of consumer guarantees. He says the learned Adjudicator applied the wrong test to the condition of the car, did not consider the actual condition of the car and erroneously concluded that Mr Brittan’s report was correct. Finally, Mr Grimes says the learned Adjudicator did not provide adequate reasons to explain why Steve Smithers was not liable for the defects in the car.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as His Honour then was) in Pickering v McArthur[1]:
There are numerous authorities, in varying language but with unvarying emphasis, that 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.
[1][2005] QCA 294 at [3].
Mr Grimes' real complaint about error is that the learned Adjudicator ignored the initial advertisement on carsales.com in which the car was described as “excellent condition” with a “yes” against the heading “roadworthy certificate”. Mr Grimes says that he relied on that advertisement because he always intended to buy a car with a roadworthy certificate that he could drive on the road.
As the learned Adjudicator found, the evidence does not support Mr Grimes’ submission. While he may have initiated inquiries based on the advertisement, Mr Grimes completed the sale with quite different information. He signed and returned a statement in which he acknowledged that the car was sold unregistered, without a statutory warranty and for the purpose of wrecking, renovation, repair or alteration.
The learned Adjudicator found that this was the basis of the contract between Mr Grimes and Steve Smithers. It was implicit in the learned Adjudicator‘s decision that he found that any representations in the advertisement were overtaken by the terms of the contract. Mr Grimes’ intentions in buying the car were irrelevant unless those intentions found their way into the contract.
Mr Grimes told the learned Adjudicator[2] that he signed that statement understanding that there was no point in registering the car in Queensland as it was being sold interstate but that he still expected a roadworthy certificate because of his conversations with “Don” of Steve Smithers. The learned Adjudicator did not accept Mr Grimes’ evidence but preferred Mr Smithers’ evidence.
[2]Transcript page 1-4, lines 36-40.
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 carefully. The evidence can support the learned Adjudicator’s findings and there is nothing in the transcript to persuade me that he should have taken a different view of the facts.
Mr Grimes must show more than just a misrepresentation to succeed in an action for misleading and deceptive conduct. He must also show that he relied on that representation. There were two intervening events that prevented Mr Grimes relying on the advertisement. The first was the inspection report by Mr Brittan. On any view, that report does not confirm that the car was in “excellent” condition.
The second event was the contract and statement Mr Grimes signed in which he acknowledged that the car did not have a roadworthy, or statutory warranty and would only be used on private property. In those circumstances, the learned Adjudicator was correct in his finding that Mr Grimes did not rely on the advertisement.
The consumer guarantees under the Australian Consumer Law do not help Mr Grimes either. The guarantees implied by the Australian Consumer Law refer to the disclosed purpose and the relevant circumstances[5]. The statement Mr Grimes signed must inform the “disclosed purpose” and must be part of the circumstances that the learned Adjudicator could consider.
[5]See, for example, ss 54(3) and 55(1).
Mr Grimes says the learned Adjudicator’s reasons for decision were deficient because he did not refer to potential liability for misleading and deceptive conduct, breach of implied terms of the agreement and breaches of the Australian Consumer Law. The learned Adjudicator did not need to refer to these matters because, in his view, all of them were overtaken by the fact that Mr Grimes signed a contract in which he acknowledged he was buying a car without a roadworthy and that was not to be used on public roads. I do not find any error in the learned Adjudicator’s approach.
Leave to appeal the decision relating to Steve Smithers should therefore be refused.
Mr Grimes’ submission in relation to Mr Brittan is that the learned Adjudicator failed to find that the report was grossly negligent or intentionally misleading. The learned Adjudicator found that the report was adequate in terms of the brief; that is, a mechanical check rather than a comprehensive report. The learned Adjudicator also found that the report was largely consistent a report from Collingwood Automotive Repairs.
Mr Grimes’ evidence was that he told Mr Brittan that he would be buying the car solely on his recommendation[6]. Mr Brittan had a different view of that conversation[7]. The learned Adjudicator found that Mr Grimes received a basic report that complied with his instructions from Mr Grimes and the $120 Mr Grimes paid. Mr Grimes received a more comprehensive report from Collingwood Automotive Repairs but paid $330. Another way of interpreting the learned Adjudicator’s decision is that is “you get what you pay for”. The evidence can support the learned Adjudicator’s finding and I can find no compelling reason to come to a different view.
[6]Transcript page 1-15, lines 26-29.
[7]Transcript page 1-16, lines 13-14.
Finally, even if the learned Adjudicator was in error, I am not persuaded that Mr Grimes’ calculation of his loss is correct. There is evidence to suggest that Mr Grimes could have sold the car for scrap and recouped a substantial part of the purchase price. Even if Mr Grimes is correct, and the value is only $4,000, he has not mitigated his loss by selling the car and reducing the continuing finance costs.
He claimed a refund of the “extra” amount financed although this seems to be either unrelated to the purchase of the car or already claimed as part of the cost of getting the car registered in Victoria.
Mr Grimes has claimed legal costs of $1,287.47. The only costs the tribunal can order is the filing fee of $284.60[8].
[8]Queensland Civil and Administrative Tribunal Rules 2009 (Qld) s 83(b).
There is no reasonably arguable case that the learned Adjudicator was in error. Leave to appeal should be refused.
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