Hoyos v Autocare Tyre and Mechanical

[2022] QCATA 62

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION

Hoyos v Autocare Tyre and Mechanical [2022] QCATA 062

PARTIES:

ARIADNE HOYOS

(applicant)

v

AUTOCARE TYRE AND MECHANICAL

(respondent)

APPLICATION NO:

APL378-20

MATTER TYPE:

Other civil dispute matters

DELIVERED ON: 

3 May 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes

ORDERS:

The application for leave to appeal is dismissed.

CATCHWORDS:

APPEAL – APPLICATION FOR LEAVE TO APPEAL – MINOR CIVIL CLAIM – CONSUMER DISPUTE – where agreement for service and repair of car – where  fan assembly fails and is replaced – where consumer opts for repairs - where consumer refuses to allow trader to investigate cause of fault – where primary tribunal finds for trader – where difference between trial and application for leave explained – where no reasonably appellable error identified or demonstrated – where leave to appeal refused

Australian Consumer Law s 54. s 60

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 143

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Devries v Australian  National Railways Commission (1993) 177 CLR 472

Felton & Anor v Raine and Horne Real Estate [2011] QCATA 330

Fox v Percy (2003) 214 CLR 118http://

JM v QFG and KG [1998] QCA 228

Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611

Myers v Medical Practitioners Board (2007) 18 VR 48

QUYD Pty Ltd v Marvass Pty Ltd  [2009] 1 Qd R 41
Robinson v Corr [2011] QCATA 302

Secretary of State for Education and   Science v Tameside Metropolitan Borough Council [1977] AC 1014
W (an infant), In Re [1971] AC 682

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

Introduction 

1. The applicant for leave to appeal (`Hoyos’) owns a Hyundai Tucson motor car (`the Hyundai’), registered number 387-KKG. The respondent firm (`Autocare’) conducts a motor repairs business at South Pine Road, Brendale, Brisbane.

2. In January 2018 Hoyos engaged Autocare to remedy the Hyundai’s interior fan assembly which was working only intermittently.

3. Section 60 of the Australian Consumer Law (`ACL’) provides that services supplied to consumers in trade or commerce will be `rendered with due care and skill’. Section 54 of the ACL requires that goods supplied to a consumer must be reasonably for any purpose the consumer made known to the supplier. In the present case there was a supply of goods and services.

4. On or about 12 January 2018 Autocare supplied and fitted a new fan assembly the Hyundai. For that procedure Hoyos paid $545.[1]

   [1]The invoice was mistakenly addressed to Hoyos’ sister Eva, but it is common ground that the actual customer and payer was the applicant.

   Defective part replaced

5. It appears that the new fan performed satisfactorily for just over 12 months, but failed in late January 2019. Hoyos returned the car to Autocare a few days later.[2] The fan assembly was replaced with another new one free of charge, although the warranty period had expired.[3]

   [2]Transcript of hearing 16 November 2020 (`T’) page 4 line 26.

   [3]T page 6 line 9.

6. Two months later, in March 2019, Hoyos complained that the fan was giving trouble again.[4] At that stage, it seems, the customer-trader relationship soured. According to Autocare’s Donovan:

   [T]hat was the day that [Hoyos] came in and abused – tore strips off me – lots of abuse, and we weren’t allowed to touch the car. She said: `There’s no effing way you’re touching my car. ... The only option that she wanted was a refund, but 13 months later, that’s just not an option. We have a right to repair or replace. We certainly have the option to look at the car and make sure that that is the fault – it may have other issues, we don’t know.[5]

   [4]T page 4 line 32.

   [5]T page 4 lines 41-47.

7. `So you didn’t have a chance to look at the vehicle then?’ the adjudicator asked. Donovan replied:

   No ... and then [Hoyos] specifically said, `You’re not touching my effing car. I wouldn’t trust you to do anything.[6]

   [6]T page 7 lines 5-6.

8. At this stage Hyundai was prepared to act as a de facto consultant to Autocare, but neither firm was allowed to examine the car to see whether there was a minor problem that might easily be remedied.

9. `It’s all false’, Hoyos retorted –

   And I just want it to be resolved, because I use my air conditioner even in winter. ... I just said just fix it, whatever you need to take just fix it. ... I don’t want a refund.  I want the air conditioner fixed.[7]

   [7]T page 7 lines 30-32, emphasis added.

10. The Office of Fair Trading declined to intervene.[8]

    [8]Email Office of Fair Trading to Autocare 19 November 2019.

    Action begun

11. It was a stalemate, and the contretemps did not subside. On 21 May 2019 Hoyos filed a consumer dispute application alleging;

    [Autocare] did not provide the service (installation of fan) as agreed and paid for on 12/01/18. A refund for the amount paid, damage conducted by Terry Donovan (electrical wiring) and compensation for time and stress during the year whereby he did not resolve the issue he was paid to repair.

12. No particulars of damage to the wiring or `time and stress’ were given.

13. It will be seen that any demand for a refund made in May 2019[9] was disavowed at the hearing in November 2020.

    [9]See paragraph [6] above.

    Dismissal and reasons

14. The hearing took place on 16 November 2020, when the primary application was dismissed. In her decision the adjudicator stated in part:

    I prefer the evidence of [Autocare] in this matter, and I find it more likely than not that on 26^th March [2019] ... [Donovan] informed [Hoyos] at that point that the vehicle may need to be inspected by Hyundai if the fan was to be replaced [again]. ... However, it’s only in a circumstance that where [Autocare] refused a refund, and refused to repair which, while the applicant suggests that may be the case, I’m not satisfied that in fact it was.[10]

    [10]T page 16 lines 20-31.

15. In other words this is a finding, albeit somewhat obscurely stated, that Hoyos unreasonably refused to allow Autocare to take further remedial action. The adjudicator added:

    It’s [Autocare’s] position that had [Hoyos] left the vehicle with [it] at that point in time Donovan would have inspected the vehicle to determine whether the fan was faulty, or whether it was another issue that may have contributed to this. ... [T]he burden is on [Hoyos] to prove her case. [T]he issue before the Tribunal ... is whether or not [Hoyos] gave [Autocare] the opportunity to repair the fan ... on the final attendance on 26^th March.[11]

    [11]T page 15 lines 43-45. page 16 lines 4-11.

16. Clearly Hoyos’ claim was dismissed because, as the adjudicator found, she did not give Autocare a reasonable opportunity to repair the fan. Thus she is the party who stood in the way of her demand to `just fix it’.

17. Reasons given for accepting Autocare’s case are that (i) the judge of fact and credit found Donovan to be the more precise and persuasive witness; (ii) Donovan made diary notes that the adjudicator found were contemporary; and (iii) Donovan had a important interest in treating Hoyos’ problem with care, and certainly not in cavalier fashion, because `he has a business relationship with [Hoyos’] sister, [who] contributes a significant source of income to [Autocare’s] business’.[12]

    [12]T page 16 lines 15-16.

18. Hoyos raises no issue as to adequacy of reasons for the primary decision.

    Application for leave to appeal

19. In the application  for leave[13] to appeal[14] Hoyos seeks a `refund and compensation for all  that has occurred’ and alleges that:

    [The adjudicator] stripped my family of our consumer rights.  My family endured more than 12 months dealing with [Autocare] due to errors in repairing the air conditioner. [Donovan] claims he repaired/replaced it three times in less than 12 months. On the last occasion he threw my family off the premises stating that he had repaired it three times and there was nothing more. [He] told me to go elsewhere to have it repaired.

    [13]Necessitated by s 143(3) of the QCAT Act.

    [14]Filed on 16 December 2020.

20. In that application, as in her submissions filed on 2 June 2021, Hoyos makes it plain that she is disappointed with the decision, but does not identify any reasonably arguable error of law or `glaring’ improbability[15] in the reasons given for it. Instead, she seeks to re-run the case rejected at first instance. That is a misapprehension that is common, albeit understandable in this jurisdiction.

    [15]Devries v Australian  National Railways Commission (1993) 177 CLR 472 at 479 per Brennan, Gaudrom and McHugh JJ.

    Nature of leave application

21. An application for leave to appeal is not an opportunity to re-assert and reargue disputed points of fact or credit that have been decided by the primary decision maker; that is his or her exclusive task.[16] It is a distinct and relatively narrow quest for appellable errors of law.[17] Indeed, the very purpose of `leave barrier’ is to preclude attempts to retry cases on the merits, or to introduce evidence or arguments that might have been led in the first place, but were not.

    [16]Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151; Myers v Medical Practitioners    Board (2007) 18 VR 48 at [53].

    [17]QUYD Pty Ltd v Marvass Pty Ltd  [2009] 1 Qd R 41; Felton & Anor v Raine and Horne Real Estate [2011] QCATA 330 at [19].

22. It is not nearly enough for an applicant to express disappointment, or to entertain a subjective feeling that justice has not been done.[18] It is not an appellable error to prefer one version of the facts to another[19], or to give less weight to one party’s case than he or she thinks it should receive. Findings of fact will not normally be disturbed if they have rational support in the evidence, even if another reasonable view is available.[20] Where reasonable minds may differ, a decision cannot properly be called erroneous, simply because one conclusion has been preferred to another possible view.[21]

    [18]Robinson v Corr [2011] QCATA 302 at [7].

    [19]Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151.

    [20]Fox v Percy (2003) 214 CLR 118 at 125-126; JM v QFG and KG [1998] QCA 228 at p 20 per Pincus JA; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479.

    [21]Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at

    [131];  In Re W (an infant) [1971] AC 682 at 700 per Lord Hailsham; Secretary of State for Education and    Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025.

    Resolution

23. No reasonably arguable ground of appeal has been shown, and the application for leave must be dismissed.

    ORDER

    The application for leave to appeal is dismissed.