Hughes-Webb v AF Palmer (Removalist) South Queensland Pty Ltd
[2011] QCATA 85
•20 April 2011
| CITATION: | Hughes-Webb v AF Palmer (Removalist) South Queensland Pty Ltd [2011] QCATA 85 |
| PARTIES: | Mrs Beverley Hughes-Webb (Applicant/Appellant) |
| v | |
| AF Palmer (Removalist) South Queensland Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL212-10 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 20 April 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal is refused. |
| CATCHWORDS: | Minor civil dispute – findings of fact – where no error demonstrated in the primary decision Queensland Civil and Administrative Tribunal Act 2009, s 142(3) QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Fox v Percy [2003] HCA 22 |
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
Mrs Hughes engaged AF Palmer to provide house removal services when she moved from her house in Rochedale to the Gold Coast on 21/11/2007. Prior to the move, Mrs Hughes accepted the quote for the move provided by AF Palmer of $3,140.00, which included one month’s storage.
The move took place and then, on 28 February 2008, Mrs Hughes asked AF Palmer to deliver her household goods to her new address at 13 Armidale Crescent, Helensvale. For this move, she was quoted $1,800.00. She accepted that quote.
After the move she paid the $1,800.00 account in a number of small payments over subsequent months with the final payment being made on 31 February 2009. This payment was received by the respondent on 11 March 2009.
There remained a balance of $771.59 owing to AF Palmer.
Mrs Hughes did not pay the balance because she alleged that certain items of property were damaged or lost by AF Palmer and they were liable to compensate her for this loss. At the hearing of the application to recover the sum of $771.59 in the Tribunal on 26 May 2010, the learned Adjudicator provided comprehensive reasons as to why she did not accept that the applicant had a legitimate set off to AF Palmer’s claim. One of the matters that she took into account, and was clearly entitled to, was the fact that Mrs Hughes did not make any complaint about damaged or lost goods until more than 12 months after the move took place. She gave careful reasons as to why she came to the view that there was not a valid set off and those reasons are set out in the transcript.
Not satisfied with that decision, Mrs Hughes filed an application for leave to appeal or appeal. Leave is necessary as this is an appeal from a decision in a minor civil disputes jurisdiction.[1] The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?[2] Is there a reasonable prospect that the applicant will obtain substantive relief?[3] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[4] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[5]
[1] QCAT Act, section 142(3).
[2] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[3] Cachia v Grech [2009] NSWCA 232 at [13].
[4] QUYD Pty Ltd v Marvass Pty Ltd (supra).
[5]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
I have carefully read the transcript of the evidence and the learned Adjudicator’s reasons. In considering whether leave to appeal should be granted, in addition to the above, it is not for this Appeal Tribunal to determine where the truth lay between the competing versions given by the parties. That is the domain of the decision-maker. The function of this Tribunal is to determine whether there is an error in the primary decision.[6]
[6] Fox v Percy [2003] HCA 22 at [32].
The learned Adjudicator heard the evidence from the parties, considered Mrs Hughes’ submissions and made findings of fact which, despite the submissions made by Mrs Hughes in this appeal, do not demonstrate any error on the part of the Adjudicator. Her conclusions of fact were clearly open on the evidence before her.
As no error has been demonstrated, or is apparent, leave to appeal must be refused.
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