Hussein Sabawi t/as Ed's Pcs Toombul v Rodney Porter t/as Smowmobile Automotive Airconditioning

[2014] QCATA 25

CITATION: Hussein Sabawi t/as Ed’s Pcs Toombul v  Rodney Porter t/as Smowmobile Automotive Airconditioning [2014] QCATA 025

PARTIES:	Hussein Sabawi t/as Ed’s Pcs Toombul (Applicant/Appellant)
v
Rodney Porter t/as Smowmobile Automotive Airconditioning (Respondent)

APPLICATION NUMBER: APL503 -13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Stilgoe, OAM

DELIVERED ON: 11 February 2014

DELIVERED AT: Brisbane

ORDERS MADE:

1.    Leave to appeal granted.

2.    Appeal allowed.

3.    The order of 22 October 2013 is set aside.

4.    The minor civil dispute application filed 29 July 2013 is dismissed.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where identity of respondent not clarified – where named respondent not the correct entity – whether grounds for leave to appeal

Dearman v Dearman (1908) 7 CLR 549

Fox v Percy (2003) 214 CLR 118

Chambers v Jobling (1986) 7 NSWLR 1

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
Cachia v Grech [2009] NSWCA 232
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388

McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404

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

1. This appeal is yet another example of what can happen when parties are not properly identified. Here, the trader did not always display its ABN and used labels without thought. The consumer did not check the identity of the party he wanted to sue. The tribunal did not check whether Mr Sabawi was the proper respondent.

2. The issue did not come to a head until Mr Sabawi filed an application for leave to appeal a decision against him “trading as” Ed’s Pcs Toombul”. He says that he was simply the manager of a company called Eds PCs ONLINE.

3. When Mr Porter asked for an upgrade to his computer, he received an invoice from Eds PCs ONLINE which shows an ABN. A search of that ABN shows that the entity is, in fact, Ed’s PCs Online Pty Ltd. That company should have been the proper respondent. To be fair to Mr Porter, he also received a copy of a workshop receipt, internal job sheet and letter from “Ed’s PC’s”. The workshop receipt also has, in small print, “Ed’s PC’s Toombull”. However, Mr Porter has the obligation to ensure he is filing a claim against the correct entity and in this case, he fell into error.

4. The tribunal did not check, or call for proof of the trading name so it, too, fell into error.

5. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. Leave to appeal should be granted. Because the correct entity has never been before the tribunal, my only option is to allow the appeal, set aside the order of the tribunal dated 22 October 2013 and dismiss Mr Porter’s application.