Hedge v Swimming Pool & Spa Association of Queensland Inc

[2013] QCATA 57

CITATION: Hedge v Swimming Pool & Spa Association of Queensland Inc [2013] QCATA 57

PARTIES:	Kerry John Hedge (Applicant/Appellant)
V
Swimming Pool & Spa Association of Queensland Inc (Respondent)

APPLICATION NUMBER: APL320 -12

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe, Senior Member

DELIVERED ON: 25 February 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1.  Leave to appeal refused.

CATCHWORDS: MINOR CIVIL DISPUTE – whether grounds for leave to appeal

APPEARANCES and REPRESENTATION (if any):

The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. Mr Hedge had a fibreglass pool installed by Panorama Pools. About five years after the pool was installed, Mr Hedge noticed that the pool shell was “bubbling”.  It suffered from a condition called osmosis and had to be replaced. Panorama Pools was no longer in business but Mr Hedge had signed a “Watertight Contract Benefit” by which Swimming Pool & Spa Association of Queensland Inc provided a form of insurance. Mr Hedge made a claim on SPASA for the cost of a new pool.

2. SPASA rejected the claim because Panorama had never lodged an application for insurance. Mr Hedge applied to the tribunal for relief. The tribunal dismissed Mr Hedge’s claim for the same reason.

3. Mr Hedge wants to appeal that decision. He says that the learned Adjudicator was wrong in fact and law because he did not find that Panorama Pools acted as SPASA’s agent in accepting the insurance application.

1. Because this is an appeal from a minor civil dispute, Mr Hedge must seek leave to appeal. The tribunal may grant leave if the dispute raises a question of general importance and the public would benefit from a decision on that question. It may also grant leave if Mr Hedge shows a reasonably arguable case of error and a reasonable prospect that he will obtain substantive relief if the error is corrected.  

1. Mr Hedge has referred the appeals tribunal to the High Court’s statements about the principles of agency[1]. An agent, as Mr Hedge points out, is a person who is able to create or affect legal rights and duties between his principal and third parties.

   [1] Scott & Ors v Davis [2000] HCA 52; Petersen v Moloney (1951) 84 CLR 91

1. As the learned Adjudicator observed[2], the document Mr Hedge relies on is a Benefit Application. There are important notices on the document that place the responsibility for lodging the form with SPASA on Mr Hedge.

   [2]        Transcript page 25 lines 13-16

1. I agree with Mr Hedge that Panorama Pools was an agent. However, because the Benefit Application places the responsibility of lodging the form on the customer, I find that Panorama Pools acted as Mr Hedge’s agent, not SPASA’s agent. The learned Adjudicator’s decision was correct and I can find no reason to come to a contrary view.

1. I understand Mr Hedge’s disappointment. Panorama Pools was a SPASA member. Panorama Pools’ contract bore the “SPASA recommended” logo. The contract is a pro forma SPASA contract. However, and importantly, the final page of the contract expressly excludes any claim against SPASA arising out of the contract. Panorama Pools was not SPASA’s agent and SPASA cannot be liable for the acts of its members simply because it endorses the use of those members.

1. There is no question of general importance that should be determined by the appeals tribunal; there is no reasonably arguable case that the learned Adjudicator was in error; there is no reasonable prospect of substantive relief on appeal; and there is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.