Jensen v Noble House Furniture Pty Ltd
[2013] QCATA 242
•26 August 2013
| CITATION: | Jensen v Noble House Furniture Pty Ltd [2013] QCATA 242 |
| PARTIES: | Mr John Jensen (Applicant) |
| v | |
| Noble House Furniture Pty Ltd ATF Noble House Trust t/as Noble House Design (Respondent) |
| APPLICATION NUMBER: | APL391 -12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe OAM, Senior Member |
| DELIVERED ON: | 26 August 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused |
| CATCHWORDS: | MINOR CIVIL DISPUTE – where shower screen shattered four years after installation – whether screen fit for the purpose – measure of damages – whether grounds for leave to appeal Trade Practices Act 1974 (Cth) (repealed) s 74B Medtel Pty Ltd v Courtney [2003] FCAFC 151 Fox v Percy (2003) 214 CLR 118.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. McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
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
In June 2008, Noble House Design installed glass shower screens in Mr Jensen’s home. In August 2012, one of the shower screens shattered. Mr Jensen claimed a refund of the cost of installation - $1,400 – from Noble House Design. The tribunal dismissed Mr Jensen’s claim.
Mr Jensen wants to appeal the decision. He says that he was denied natural justice because the learned Member did not accept copies of extracts of legislation that he wanted to hand up. He says that the learned Member did not consider the relevant law. He says that the learned Member did not consider the material evidence.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. 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?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?[4]
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at 2.
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]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.
Mr Jensen attempted to hand the learned Member extracts from the Trade Practices Act 1974 (Cth) three times[5]. Each time, the learned Member asked him to explain the law in the context of his case. Eventually, Mr Jensen did explain to the learned Member that s 74 of the Trade Practices Act required the shower screen to be fit for the purpose and that meant it should have lasted longer than four years.[6] Mr Jensen had a lawyer present but the lawyer chose not to go on the record. The learned Member adjourned the hearing so the lawyer could advise Mr Jensen about his claim[7]. She offered a further adjournment at the end of the hearing[8]. The learned Member’s failure to accept a copy of extracts from the Trade Practices Act is not a failure to provide natural justice.
[5] Transcript pages 5 at line 20; page 9 at line 47; page 11 at line 40.
[6] Transcript page 11, lines 40-43.
[7] Transcript page 4, lines 17-30.
[8] Transcript page 10, line 33.
The learned Member’s reasons do not address Mr Jensen’s Trade Practices Act argument directly.
The appeals tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[9] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[10] As the High Court said in Fox v Percy:
In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.[11]
[9]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[10] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[11] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
The Trade Practices Act 1974 (Cth) did not require absolute fitness for purpose but it is implicit that the goods must have the capacity to remain fit for purpose for a reasonable time after supply. The test for whether goods are reasonably fit for the purpose is measured objectively, at the time of supply, in all the relevant circumstances. The circumstances include the description of the goods and the price paid.[12]
[12] Medtel Pty Ltd v Courtney [2003] FCAFC 151 at [64]
Mr Jensen told the tribunal that the shower screen was poor quality Chinese glass[13] but he did not provide any objective evidence of that fact. Mr Russell, a witness for Noble House, told the tribunal the glass was tempered, as the Australian Standards required. He also told the tribunal that, in his 57 years in the industry, he was aware of only three cases where a shower screen had shattered. In each of those cases, the screen was under tension because it was “on a bend”[14]. Mr Russell also told the tribunal that “glass, by its nature, will break” and that he did not know how or why Mr Jensen’s glass broke after four years.[15]
[13] Transcript page 7, lines 4-5.
[14] Transcript page 9, lines 4-13.
[15] Transcript page 7, lines 34-38.
The only evidence that the screen was not fit for the purpose was the fact that it shattered after four years of use. The learned Adjudicator was not satisfied that Noble House breached its duty to Mr Jensen. That finding was open to her, the evidence was capable of supporting that finding and I can find no compelling reason to come to a different view.
Even if I was minded to overturn the learned Adjudicator’s decision, Mr Jensen’s claim for $1,400 could not succeed. Mr Jensen claimed the whole cost of the Noble House installation. That price included supply and installation of a mirror, which was not affected. Mr Jensen chose to replace the whole shower cubicle at a cost of only $1,000[16]. According to Noble House, the shattered screen could have been replaced at a cost of $200[17]. That sum, $200, is the measure of Mr Jensen’s loss.
[16] Transcript page 9, line 39.
[17] Transcript page 9, lines 21-25.
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. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.
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