Lockitch v Grays Online
[2013] QCATA 299
•23 October 2013
| CITATION: | Lockitch v Grays Online [2013] QCATA 299 |
| PARTIES: | Mrs Antonia Lockitch (Applicant) |
| v | |
| Grays Online (Respondent) |
| APPLICATION NUMBER: | APL342-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 23 October 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal is refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549 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
Mrs Lockitch was building a new house. To save money, she bought building materials through an online auction site, Grays Online. On 13 November 2011, she bought some assorted building supplies. The next day, she bought large quantities of aluminium and stainless steel for $19,100. The terms of sale were “as is where is”. The aluminium and stainless steel was located at Narangba.
Mrs Lockitch had problems with the delivery of the material bought on 13 November 2011. Those problems complicated the arrangements for the delivery of the aluminium and stainless steel. On 19 November 2011, Mrs Lockitch advised Grays Online that, because of transport problems, she would not complete the sale.
Thereafter, Mrs Lockitch’s version of events and that of Grays Online diverge. But there were some facts that were not in dispute. Mrs Lockitch paid Grays Online on 20 November 2011. Grays Online had to move the aluminium and stainless steel from Narangba, because the owner wanted a clear site by 23 November 2011. On 23 November 2011, Grays Online moved the aluminium and stainless steel from Narangba to its yard at Acacia Ridge. Mrs Lockitch has not collected the aluminium and stainless steel.
Mrs Lockitch filed an application for a refund of the money she paid to Grays Online. The learned Member dismissed her application.
Mrs Lockitch wants to appeal that decision. She says that the learned Member was mistaken in his analysis of the issue. She also says that the learned Member’s decision that she bore the risk of the aluminium and stainless steel was based on misleading and incorrect information.
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.
The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[5] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[6] However, the appeal tribunal must exercise its own discretion when considering whether the original decision maker was in error. 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.[7]
[5]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[6] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[7] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
Mrs Lockitch says that the learned Member decided the dispute was about the cost of delivery from Acacia Ridge to her address at Kedron, whereas the dispute was really about four matters. Firstly, Grays Online did not deliver the goods to Kedron as had been agreed. Secondly, Grays Online moved the goods without her permission or consent. Thirdly, Grays Online refused access to the goods unless she paid the cost of freight from Narangba to Acacia Ridge. Mrs Lockitch also says that Grays Online refused to accept responsibility for the deterioration of the goods.
The learned Member’s reasons for decision are clear. He found that the contract between Grays Online and Mrs Lockitch was formed when the “hammer fell” on the online auction. He found that, from that point, Mrs Lockitch was responsible for the removal of the goods and the risk of deterioration. He found that Mrs Lockitch was obliged to remove the goods from Narangba at her own cost and by 23 November 2011. He found that Mrs Lockitch could not arrange for the removal of the goods within the time frame. He found that Grays Online, as a matter of commercial reality, tried to assist Mrs Lockitch. The evidence supports these findings and I can find no reason to come to a different view.
Mrs Lockitch argues that there was a variation of the sale contract by Grays Online’s intervention in the delivery process. The facts do not support that contention. At best, Grays Online and Mrs Lockitch had a separate contract for the delivery of the goods. The more likely explanation, however, as the learned Member observed, is that Grays Online was simply assisting Mrs Lockitch so that it could avoid commercial problems of its own.
The learned Member found that the goods should have been delivered to Kedron but he had no evidence about the difference in cost between Kedron and Acacia Ridge. He rightly observed that Mrs Lockitch had to prove her loss and she had not done so. In any event, the loss was not the purchase price as Mrs Lockitch claimed but something much less. The learned Member was correct in his decision to dismiss the claim.
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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