Hepworth v Contor
[2011] QCATA 55
•18 March 2011
| CITATION: | Hepworth v Contor [2011] QCATA 55 |
| PARTIES: | Peter John Hepworth (Applicant/Appellant) |
| v | |
| Telia Jane Contor (Respondent) |
APPLICATION NUMBER: APL238-10
| MATTER TYPE: | Appeals |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Justice Alan Wilson, President |
DELIVERED ON: 18 March 2011
DELIVERED AT: Brisbane
ORDERS MADE: 1 Grant leave to appeal.
2 Allow the appeal.
3 Remit the matter to the Tribunal for re-hearing at Mackay at a time and date to be advised to the parties.
4 The parties are ordered to attend a compulsory conference on 16 May 2011 at 1.30pm in Mackay.
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where applicant purchased a laptop from respondent – where applicant purchased an extended warranty – where laptop was faulty – where applicant alleged that the respondent was in breach of the Fair Trading Act 1989 and the Sale of Goods Act 1896 – where Magistrate dismissed claim – whether error of law Queensland Civil and Administrative Tribunal Act 2009, s 142 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Mr Peter Hepworth commenced proceedings in QCAT’s Minor Civil Disputes jurisdiction in Mackay against the respondent, Ms Telia Contor, the owner of Rede Computers.
Mr Hepworth had purchased a laptop computer from that business on 14 October 2009, for $4,590.00.[1]
[1] Tax Invoice, Exhibit “PJH2” to the affidavit of Mr Hepworth, dated 13 September 2010.
He alleged that the respondent breached the Sale of Goods Act 1896 in supplying a laptop that was not of merchantable quality, in that it:
§Was not a new laptop as represented by the respondent’s sales employee, but was a refurbished overseas model that was not licensed by the manufacturer to be sold in Australia;
§Had a large scratch across the screen, caused by the keyboard of the laptop when it was closed; and
§Had a faulty USB port.
Additionally, Mr Hepworth alleged that the respondent breached the Fair Trading Act 1989 in:
§Engaging in conduct that was misleading or deceptive or likely to mislead or deceive by supplying a laptop that was not new, but refurbished; and
§In advising him to take out an extended three-year warranty for a cost of $199.00 for purposes of enabling the laptop to be repaired faster, when that was not in fact possible given the terms of the warranty.
The matter went to a hearing before a Magistrate, acting as a QCAT member, on 20 September 2010. After hearing evidence from both Mr Hepworth and Ms Contor, the learned Magistrate dismissed Mr Hepworth’s claim.
The basis upon which the claim was dismissed was the learned Magistrate’s finding that Mr Hepworth was “… not prepared to make any attempt to make a warranty claim based on the extended warranty that he has purchased”.[2]
[2] Transcript, p 17.
Mr Hepworth has applied for leave to appeal the learned Magistrate’s decision. Pursuant to s 142(3)(a)(i) of the QCAT Act, a right of appeal from decisions in the Minor Civil Disputes jurisdiction is not automatic and can only be brought with leave of this Appeal Tribunal.
In the ordinary course of events, leave to appeal is granted only where there is some question of general importance upon which further argument, and a decision by the Appeal Tribunal would be to the public advantage; or, where there is a reasonably arguable error of fact or law (or both) in the primary decision together with reasonable prospects that the appellant will obtain further substantive relief.
As the Appeal Tribunal said in Morton v Hull [2010] QCATA 79: “Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?”
[10] This Appeal Tribunal directed that Mr Hepworth’s application for leave to appeal (and his appeal, if leave is granted) would be determined “on the papers”.[3] Mr Hepworth filed written submissions together with his Application for leave to appeal or appeal, on 30 September 2010. Despite this order, the respondent has not filed any submissions resisting his application, or his appeal.
[3] Pursuant to s 32(2) of the QCAT Act 2009.
[11] The transcript of the proceedings shows that the learned Magistrate endeavoured to uncover the detail involving the laptop repair transactions, asking appropriate questions of both Mr Hepworth and Ms Contor.
[12] The learned Magistrate made the following findings, which are not disputed:
§There was a faulty USB Port;
§Mr Hepworth had returned the laptop to the respondent, where it remained for some time;
§Mr Hepworth has not independently pursued a warranty claim based upon the extended warranty he purchased.
[13] At the hearing, Ms Contor disputed that the laptop left the respondent’s premises with a mark across the screen.
[14] The learned Magistrate unfortunately fell into error by holding that, on the basis that as Mr Hepworth had a warranty, he needed to avail himself of that warranty before he could attempt to pursue any other legal remedies that might be available to him.
[15] Mr Hepworth has a contractual claim against the respondent, as well as claims that the respondent acted in contravention of both the Sale of Goods Act 1896 and Fair Trading Act 1989. There is no legal basis for the conclusion that, in effect, a consumer with a lawful claim arising from the purchase of goods such as the laptop at issue here must first pursue a warranty claim against an external warranty provider.
[16] The learned Magistrate should, with respect, have considered the legitimacy of the claims that Mr Hepworth had actually pursued against the respondent in the proceedings listed for hearing before him, and made a determination upon them. The failure to do so involves a plain error of law, which cannot be allowed to stand.
[17] Unfortunately, because the facts surrounding those claims were not fully or properly explored and there is insufficient information to enable the Appeal Tribunal to safely reach a concluded view about Mr Hepworth’s claims in the proceeding (and substitute its own decision), this matter will have be returned to the Tribunal for a further hearing and determination according to law.
[18] However, before this matter proceeds to a further hearing, it seems sensible that the parties attend a compulsory conference before a QCAT member to try to achieve a reasonable outcome for what has, for both parties, been a regrettably prolonged and complicated series of events.
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