Lyall v Terite Pty Ltd as Trustee for the Anastasas Family Trust trading as Formula Automotive
[2022] QCATA 96
•5 July 2022
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Lyall & Anor v Terite Pty Ltd as Trustee for The Anastasas Family Trust trading as Formula Automotive [2022] QCATA 96
PARTIES:
DESIREE DESPINA LYALL (first appellant)
VIKTOR LEONARD LYALL (second appellant)
V
TERITE PTY LTD ACN 166 435 141 AS TRUSTEE FOR THE ANASTASAS FAMILY TRUST TRADING AS FORMULA AUTOMOTIVE (respondent)
APPLICATION NO/S:
APL255 of 2021
ORIGINATING APPLICATION NO/S:
MCD702 of 2020
MATTER TYPE:
Appeals
DELIVERED ON:
5 July 2022
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member WA Isdale
ORDERS:
1. Leave to appeal granted
2. Appeal dismissed
CATCHWORDS:
APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – NATURE OF RIGHT – APPEALS BY WAY OF REHEARING – whether appellants afforded procedural fairness – where parties had an oral agreement – where parties disagreed as to the quantum of consideration
Queensland Civil and Administrative Tribunal Act 2009
Kioa v West (1985) 159 CLR 550
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
Background
On 11 May 2021, a QCAT Adjudicator heard matter MCDO702 of 2020 at Brisbane. The matter was heard and determined with ex-tempore reasons and an order that the matter be dismissed. The hearing was recorded and has been transcribed into 27 pages of record.
The dispute
The dispute was a consumer one whereby the applicant sought a refund of $2,714.90.[1] Mr and Ms Lyall appeared as the applicants and Mr Anastasas on behalf of the respondent.[2]
[1]T1-24, line 26.
[2]T1-2, lines 2-4.
An oral agreement was made exclusively between Mr Lyall and the respondent for repairs to Mr Lyall’s vehicle in 2015.[3] Mr Anastasas spoke with Mr Lyall’s father to explain exactly what work was to be undertaken on the vehicle. However, the decision as to what work would be done rested on Mr Lyall.[4]
[3]T1-3, lines 18-25; T1-6, line 44; T1-7, lines 11-14; T1-15, line 32.
[4]T1-7, lines 16-26.
The oral agreement between the parties was for the sourcing and installation of a reconditioned replacement engine into Mr Lyall’s vehicle, a 1997 Toyota HiLux
four-wheel drive.[5]
[5]T1-3, lines 27-43; T1-15, line 32; T1-24, lines 27-28.
Ms Lyall asserted that she heard a telephone conversation between Mr Lyall, the second appellant, and Mr Anastasas in which Mr Anastasas claimed that he could ‘just drop in a new motor’ for, what was allegedly quoted as, $3,000.[6]
[6]T1-7, lines 16-47.
The total cost of replacing the engine was $5,714.90. However, the applicants assert that they only ever agreed to pay no more than $3,000 for the replacement of the engine.[7] The difference of $2,714.90 was sought by the applicants.[8]
[7]T1-8, lines 17-20.
[8]T1-24, lines 26-30.
Mr Anastasas claims that he verbally quoted a sum of $5,475.10 to Mr Lyall, to which Mr Lyall authorised the respondent to perform the necessary works to his vehicle.[9] Mr Anastasas wrote his quote in his quote book.[10] The learned Adjudicator did not view nor let into evidence his quote book.[11]
[9]T1-14, lines 30-32; T1-15, lines 7-33.
[10]T1-5, lines 7-18.
[11]T1-22, lines 20-30.
Mr Anastasas claimed he never thought he could replace the engine for a total cost of $3,000.[12]
[12]T1-4, lines 33-40.
Mr Lyall alleges that an argument ensued when the respondent’s receptionist contacted him to inform him that the vehicle was ready for collection and that the cost of the work performed was ‘a bit over’ what was anticipated.[13] The receptionist informed My Lyall that the work was approximately ‘$300’ over.[14] Mr Lyall initially took this to mean ‘$3,300’, however, and became perturbed once the receptionist clarified that she meant approximately $5,700 instead of $5,475.[15]
[13]T1-9, lines 14-21.
[14]T1-9, lines 14-21.
[15]T1-9, lines 14-21; T1-15, line 30.
In mid-2015, the applicants visited the respondent with police in accompaniment and paid to the respondent a total of $5,714.90 to retrieve the vehicle.[16]
[16]T1-9, lines 37-41; Ms Lyall’s statement [22]-[27].
The applicants assert that they were never quoted any amount approximating $5,700 for the services rendered.[17] They believed that they had been dealt with fraudulently.[18]
[17]T1-9, lines 14-21.
[18]T1-19, lines 8-9.
The applicants asserted that:
“The fact we had to put the cost over three different credit cards, testifies to the fact that we weren’t expecting to pay that much money, nor were we ever quoted that much money.”[19]
[19]T1-12, lines 34-36.
Prior to retrieving the vehicle, the applicants tried to negotiate a lower price with the respondent.[20] The applicants claim that the respondent initially agreed to a payment of $5,400.[21] Upon collecting the vehicle, the applicants allege that the respondent reneged and required the applicants to pay $5,714.90.[22]
[20]Ms Lyall’s statement [11]-[13]; T1-19, lines 5-14.
[21]Ms Lyall’s statement [13].
[22]Ms Lyall’s statement [13].
After collecting the vehicle, the parties unsuccessfully attempted to resolve their dispute through mediation.[23]
[23]T-1-19, lines 13-14.
The applicants further claimed that they did not have the liberty to consider selling, let alone actually sell the vehicle and purchase another.[24]
[24]T1-13, lines 21-30.
The applicants claimed that there was no way they would have replaced the vehicle’s engine, given that they claimed that at the time, the vehicle was only worth “in the vicinity of five to five and a-half thousand dollars”.[25] This value had allegedly been the vehicle’s insured value for numerous years prior.[26]
[25]T1-13, lines 19-22.
[26]T1-15, lines 43-45; 1-16, line 10.
The respondent disputed the value of the vehicle at the time when it was repaired.[27] Mr Anastasas claimed that the vehicle, in 2015 and being a four-wheel drive, would be worth over $10,000.[28]
[27]T1-15, lines 30-34.
[28]T1-15, lines 30-34.
The learned Adjudicator observed that the insured value of the vehicle was irrelevant; what may have been relevant was the vehicle’s market value.[29] The learned Adjudicator did not express an opinion on the vehicle’s market value in his reasons.[30]
[29]T1-16, line 6.
[30]T1-24, line 24 – 1-26, line 36.
As there was a lack of written evidence and written contract, the learned Adjudicator boiled the matter down to “he said, she said”.[31] The learned Adjudicator dismissed the application for a lack of evidence.[32]
[31]T1-8, line 42.
[32]T1-26, lines 23-36.
Ms Lyall appeared happy with this outcome.[33]
[33]T1-26, lines 38, 42, 46-47.
The present proceedings
The appellants appeal on a myriad of grounds, which may be summarised as the learned Adjudicator not affording the appellants natural justice.[34]
[34]Applicant’s submissions 1.
The appellants seek a refund of “at least half the monies paid over the amount agreed for work on our vehicle, & for work not agreed to by us & which was never confirmed”.[35] They also seek an order for costs.[36]
[35]Applicant’s submissions 1.
[36]Applicant’s submissions 1.
The respondent has not filed any submissions in reply. However, the respondent did file submissions in response to the appellant’s application for an extension of time to appeal (which was granted).[37]
[37]Respondent’s submissions.
At paragraph 3 of those submissions, the respondent claims that the appellant’s grounds of appeal are “based on conjecture and supposition as to the reasons for the decision and are without merit”.[38]
[38]Respondent’s submissions [3].
Natural justice
In the grounds of appeal there is a request for a fair hearing. That is an entitlement. In the Queensland Civil and Administrative Act 2009, it is prescribed by section 28(3)(a) that the tribunal must observe the rules of natural justice. In the same sub-section, it is also provided that it:
(d) must act with as little formality and technicality and with as much speed as the requirements of this Act, an enabling Act or the rules and a proper consideration of the matters before the tribunal permit; and
(e) must ensure, so far as is practicable, that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts.
The singular thrust of the grounds of appeal is that the tribunal, through the Adjudicator, has not delivered this fundamental and essential thing, a fair hearing.
A fair hearing should not, of course, be confused with an outcome which an individual litigant may desire, such as the success of their claim.
The content of the requirements of the aspect of natural justice which is presently relevant, namely procedural fairness, has been often considered by the courts.
As Mason J (as his Honour then was) observed in Kioa v West, [39] the requirements of procedural fairness must be adjusted to the statutory framework governing the tribunal in question:
What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting: Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552-3; National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at 311, 319-321.
In this respect the expression “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations …
[39](1985) 159 CLR 550, 584-585.
The transcript discloses that the Adjudicator controlled proceedings to ensure that both sides were able to present their cases. In order to do that, it was necessary to intervene with directions such as –
“Just let him finish please.”[40]
and
“Don’t you do the same. Don’t interfere. Let her speak.”[41]
[40]T1-19, lines 25-31.
[41]T1-20, lines 21-22.
Once the submissions became somewhat repetitive, the Adjudicator asked the parties, one after the other, if there was anything further that they wished to say. They both replied in the negative.[42] However, both made closing statements. The relevant part of the transcript records them in this way:[43]
ADJUDICATOR BERTELSEN: Anything else? I think we’re becoming a little bit repetitive. I pulled you up – both of you – on a couple of points. You’ve said them three or four times. Is there anything further you’d like to say that you haven’t said?
MS LYALL: No, I don’t think so. Just that it did - - -
MR LYALL: May I just reiterate the fundamental points of what I was going through mentally through that period, which was that it had already been rebuilt by [indistinct] for $3000, and I simply just wanted the liberty to be able to make the choice if he had have given me an original quote. That’s all I kind of wanted from Peter as a professional. Before I had a kind of – okay, going ahead with the work, I would just have liked the choice to know if it was going to be around $5000, which I never did. So - - -
MS LYALL: And the one thing I would like to say is that at the time, too, it did cause significant financial distress to my family. We had to do the charges over three credit cards, and I think that’s an unfair business practice.
ADJUDICATOR BERTELSEN: All right. Anything further from you, sir?
MR ANASTASAS: No, your Honour. All I’m going to say is I did communicate with the three of them. I did get an okay. Everything is itemised. I did speak to Viktor afterwards and there were other things that had to be added to the bill. They did pay for the job, and that’s it. I mean, like, yeah. Like, five years down the track, they’re coming, asking for half the money back. I mean, why? Actually, you know what I’d like to ask. Is the vehicle still around? Does the vehicle still exist or is it gone to the wreckers, or has it moved on or - - -
[42]T1-22, lines 34-37; T1-23 lines 5-7.
[43]T1-22, line 32 – 1-23, line 13.
The transcript shows that the Adjudicator allowed both parties to present their cases and was even-handed and reasonable in keeping them within the bounds of relevance.[44]
[44]T1-23, line 15.
Reasons were given at the time.[45] The reasons are sufficiently detailed to demonstrate a proper understanding of the evidence. It was stated that the application was dismissed “through lack of evidence”.[46] The Adjudicator was not satisfied that the claim had been made out. The Adjudicator did not prefer one version of the facts over another but treated them as equally weighted. Nothing was found which tipped the balance either way.
[45]T1-24, line 24 – 1-26, line 36.
[46]T1-26, lines 35-36.
On appeal, the tribunal may properly prefer one version over the other. However, this freedom is not to be exercised capriciously. There must be reasons which can be stated in order to justify such a conclusion.
A fair reading of the record does not justify preferring one party’s case to that of the other, either when this dispute was before the Adjudicator or now.
Conclusion on Natural Justice
The transcript, as has been referred to, discloses that there is no sufficient basis for concluding that the parties have not been provided natural justice. The issue is however sufficiently important to justify granting leave to appeal so that it could be properly considered.
Other matters referred to in the Grounds of Appeal
Much of what is in the Grounds of Appeal is more in the nature of submissions. However, some reference to various matters raised in there is useful for completeness and to provide assurance that everything has been considered.
It is asserted that the Adjudicator based the decision on an assumption of the value of the alleged work performed. The transcript discloses that the state of the evidence was the basis for the decision.[47]
[47]T1-26, lines 35-36.
It is stated that the alleged work was never confirmed to have been done. This is a matter which, if it was to be asserted that the job was not done, was up to the party seeking to establish that to prove. That did not happen.
The assertion that witnesses and evidence were ignored is not supported by the transcript.
The complaint that the Adjudicator allowed the respondent to “rave on unrestricted” is not supported by the transcript, which shows that there was an even-handed approach taken to keeping the parties within reasonable bounds of relevance.
The Adjudicator did not cross-examine anyone and acted properly throughout the hearing.
There is no support in the transcript for the assertion that the Adjudicator had prejudged the case. There was a regular and proper process followed.
There is no support in the transcript for the asserted ignoring of evidence and a biased or premade decision or of any unfairness to either party.
Conclusion
The tribunal must, for the reasons which have been given, order that the appeal be dismissed. There is accordingly no basis for any costs order in favour of the appellant.
ORDER
1. Leave to appeal granted
2. Appeal dismissed
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