Kaejae Pty Ltd (t/a Andersens Townsville) v The Arrows Express Pty Ltd
[2014] QCATA 38
•12 March 2014
| CITATION: | Kaejae Pty Ltd (t/a Andersens Townsville) v The Arrows Express Pty Ltd [2014] QCATA 38 |
| PARTIES: | Kaejae Pty Ltd (t/a Andersens Townsville) (Applicant/Appellant) |
| v | |
| The Arrows Express Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL526-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 5 March 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr Forbes, Member |
| DELIVERED ON: | 12 March 2014 |
| DELIVERED AT: | Brisbane |
| ORDER MADE: | Application for leave to appeal is refused. |
| CATCHWORDS: | APPEALS – APPLICATION FOR LEAVE TO APPEAL – MINOR CIVIL DISPUTE – MINOR DEBT – application for leave to appeal – carriage of goods in excess of original order – whether carrier is entitled to payment for carriage of additional goods – no issue as to usefulness of additional goods – whether application for leave an opportunity to retry issues of fact – whether doctrine of unjust enrichment applies – whether any reasonably appellable ground shown – whether leave should be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s143 Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2011) 213 FCR 345; [2011] FCA 299 |
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 (QCAT Act).
REASONS FOR DECISION
In Townsville the applicant (‘Andersens’) is in the business of supplying and installing carpets. On a Friday afternoon in mid-June 2012, it had an urgent need for supplies from Brisbane, and engaged the respondent (‘Express’) to provide the necessary transport.
According to Mrs Hombsch (for Express), Andersens, in a ‘phone call, asked for the cost of carrying two rolls of carpet from Brisbane to Townsville, and she verbally quoted $300 at $150 per roll, plus certain extras – a total of $409.92. But Andersons says that the quotation was based on weight, not number of rolls, and that it is liable to pay only $409.92. Although Andersens was not one of its regular customers, Express arranged a special Saturday delivery.[1]
[1]Transcript of hearing 4 September 2013 (Transcript) page 8 line 35.
When the goods were delivered to the Express depot by the carpet wholesaler, it was found that there were not just two rolls, but three, and the deliverer assured Express that three rolls were urgently required. On a busy Friday afternoon, Express did not contact Andersens again,[2] but, since urgent delivery was required, Express simply loaded the three rolls onto its vehicle, thinking that they ‘were doing the right thing by the customer to try and get it through’.[3]
[2]An omission criticised by the Tribunal: Transcript page 11.
[3]Transcript page 6 lines 33, 42 (Mrs Hombsch); page 8 lines 31-33 (Mr Hombsch).
On the basis of $150 per roll, Express revised the cost of carriage to $602.97.[4] Andersens have repeatedly refused to pay that amount,[5] contending that the proper charge, as per Mrs Hombsch’s verbal quotation, is $409.92.
[4]Invoice Express to Andersens 12 June 2012; email Express to Andersens 28 June 2012; Express to Andersens (per Dun and Bradstreet) 3 December 2012.
[5]Emails Andersens to Express 28 June 2012, 3 December 2012, 1 February 2013, Response filed 22 July 2013.
Andersens does not deny that three rolls were delivered to it promptly, and in good condition. It does not suggest that the additional roll was useless. But Andersens asserts that it has already paid Express, by cheque, $409.92. In support of that claim it tenders a cheque butt dated 11 June 2012, marked “Arrows [Express] inv 20393 ... $409.92”. However, there is no evidence that the corresponding cheque (if any) was collected by Express, and, while the cheque butt cites the appropriate invoice number, the invoice itself is dated 12 June 2012, one day after the date on the butt.
Express denies receipt of the alleged cheque.[6] Andersens contests that denial. However, on 3 December 2012 Andersens offered to replace it (less bank charges of $10) - an offer would scarcely have been made if $409.92 had already been debited to Andersens’ account.
[6]Transcript page 3 line 45 (Mrs Hombsch), line 47 (Mr Hombsch); email Express to Andersens 1 February 2013.
The Tribunal[7] heard the matter on 3 September 2013. The proprietors of Express (Mr and Mrs Hombsch) appeared and gave evidence for their company.
[7]Mr Guyder JP and Ms McMahon JP.
Andersens were not represented. However, Andersens emailed QCAT on 13 August 2013 stating that both of its directors would be overseas at the time of the hearing and asking “in our absence to have the hearing decided using the information we have provided in our response”. The right to be heard is shorthand for an opportunity to be heard, which can be waived or abandoned, wholly or in part, by the party concerned.[8]
[8]Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2011) 213 FCR 345.
In an ex tempore decision the Tribunal found for Express, allowing its claim of $602.97, $55 filing fee, and $24.40 paid to ASIC for a company search.[9]
[9]Allowable under Queensland Civil and Administrative Tribunal Rules 2009 s 84(1)(a) and (d) respectively.
On 2 December 2013 Andersens sought leave to appeal. The appellant received the primary decision on 13 September 2013,[10] more than two months before the appeal was lodged. No objection is taken on that point,[11] and no application for extension of time has been made. I shall proceed to deal with the matter on the merits.
[10]Application for leave Part B.
[11]Cf QCAT Act s 143(3).
The Tribunal had the benefit of seeing and hearing Mr and Mrs Hombsch (for Express) in person, and found them to be credible witnesses.[12] No oral evidence or submissions were forthcoming from Andersens but, as noted, that was the latter’s choice. However, “they have filed a response ... and we have taken notice of that in our reasons and our considerations”.[13]There was no necessity to make findings about delivery of the goods, for that was never in dispute. Implicitly it found that the amount due was $602.97, not $409.92, as maintained by Andersens. It did not explicitly find that Express had not received a cheque for the lesser amount, but it necessarily follows that it accepted the negative version. These are reasonable findings of fact that the justices of the peace were entitled to make, and an application for leave does not entitle an appeals tribunal to “second guess” them. Apart from an inconsequential reference to the applicant’s absence from the hearing, the grounds of appeal merely contend that the applicant’s version of the facts should have been preferred to Express’s version.
[12]Transcript page 11 line 36.
[13]Reasons for decision, transcript page 11 lines 37-38.
Unfortunately the law governing applications for leave to appeal is too often misunderstood. An application for leave to appeal is not an occasion for a retrial, or for “second guessing” questions of fact or credit that are the province of the primary decision-maker. The very point of the need for leave 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. On an application for leave the question is whether there is a reasonably arguable case of error which, if not corrected, will cause substantial injustice to the applicant.[14] It is not nearly enough for an applicant to express disappointment, or to entertain a subjective feeling that justice has not been done.[15] It is not an appellable error to prefer one version of the facts to another, or to give less weight to one party’s case than he or she thinks it should receive. Findings of fact will not be disturbed if they have rational support in the evidence, even if another reasonable view is available.[16] Where reasonable minds may differ, a decision is not erroneous, simply because one conclusion has been preferred to another possible view.[17]
[14]Drew v Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359 at [18]; Felton and Anor v Raine and Horne Real Estate [2011] QCATA 330 at [19].
[15]Robinson v Corr [2011] QCATA 302 at [7].
[16]Fox v Percy (2003) 214 CLR 118 at 125-126.
[17]Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at [131]; In Re W (an infant) [1971] AC 682 at 700; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025.
However, something should be said about allowance of the charge of $150 for the third roll of carpet. If it was not a matter of implicit agreement ($150 per roll) the award is, in my view, warranted by the equitable doctrine of unjust enrichment, which no longer depends on contract.[18] That is a “discarded fiction”.[19] The modern principle is that a person who has accepted the benefit of a claimant’s services in a case where it would be unjust to do so without fair recompense, is bound to make due payment.[20] Here it has been found that Express, having quoted for two parcels, in good faith transported a third. It is undisputed that all three parcels were delivered promptly and in good order. While the Tribunal did not articulate the doctrine of unjust enrichment, it did, in good sense, observe it.
[18]Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 at 225.
[19]Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498 at 515.
[20]Braude v Kaye [2013] VSC 705 at [262]; Brenner v First Artists’ Management Pty Ltd [1993] 2 VR 221 at 257.
Andersens has not demonstrated any reasonably appellable error in the proceedings at first instance. Accordingly, their application for leave must be refused.
ORDER
Application for leave to appeal is refused.
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