Lynch v Church

[2011] QCATA 261

CITATION: Lynch v Church [2011] QCATA 261

PARTIES:	Terrence Peter Lynch t/as East Coast Outboard Wreckers (Applicant/Appellant)
v
Gary Church (Respondent)

APPLICATION NUMBER:   APL248-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON: 16 September 2011

DELIVERED AT: Brisbane

ORDERS MADE:      1.    Application for leave to appeal refused.

CATCHWORDS: 

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where the applicant sold the respondent an outboard motor which he had previously advertised as a 2006 model which had been operating for 300 hours – where the respondent came to believe that these things were untrue and brought proceedings in QCAT’s Minor Civil Disputes jurisdiction – where a Magistrate upheld the respondent’s claim and ordered that the applicant pay him $14,000 plus his filing fee of $255, after which the respondent was to return the motor to the applicant – where the respondent seeks leave to appeal that decision on questions of fact – whether leave to appeal should be granted

Queensland Civil and Administrative Tribunal Act2009, sch 3

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. Mr Lynch sold Mr Church an outboard motor which he had previously advertised as a 2006 model which had been operating for 300 hours.  When Mr Church came to believe these things were untrue he brought proceedings in QCAT’s Minor Civil Disputes jurisdiction claiming $14,000 for the price he had paid, and repair costs he had incurred.

2. A Magistrate in Gladstone, sitting as a QCAT Member, heard the matter on 15 June 2011 and upheld Mr Church’s claim and ordered that Mr Lynch pay him $14,000 plus his filing fee in QCAT of $255 within 28 days, after which Mr Church was to return the motor to Mr Lynch.

3. Mr Lynch seeks leave to appeal that decision.  He says the learned Magistrate made a number of serious of factual errors.

4. First, he says this was not a dispute arising out of a contract between a consumer and a trader and not, therefore, a ‘minor civil dispute’ within the meaning of that term in sch 3 of the QCAT Act. The transcript shows, however, that Mr Lynch admitted that he traded under the business name ‘East Coast Outboard Wreckers’; that he offered the motor for sale; and, that although he was actually selling the motor on consignment for someone else, he did not tell Mr Church that.

5. Secondly much is made, in Mr Lynch’s submissions, of the mention in the learned Magistrate’s decision of the advertisement on eBay when, Mr Lynch says, he had withdrawn the advertisement by the time the sale to Mr Church occurred and it was not material to the factual matrix in which the decision should have been made. 

6. Again, however, the learned Magistrate explained his finding that Mr Church had seen the advertisement and subsequently contacted Mr Lynch directly and they transacted the sale personally, and not through eBay; and, that finding was reasonably open on the evidence from both parties. 

7. The references in the learned Magistrate’s decision to eBay are not, as Mr Lynch asserts, pivotal.  Mr Lynch admitted, in evidence, that the engine had been advertised as a 2006 model on eBay.  Mr Church claimed in evidence that Mr Lynch had never disabused him about that representation, and that finding was reasonably open.  Certainly, Mr Lynch gave evidence that he did not inform Mr Church of another matter that might have been thought to be relevant: that he was selling the engine on consignment for another person.

8. Thirdly, Mr Lynch’s assertion that he was not operating, for the purposes of the sale, through his business East Coast Outboard Wreckers was not supported by the evidence: Mr Lynch said, during his evidence, that he advertised the motor ‘… through our business’;[1] and, at the beginning of the proceedings which has been brought against both Mr Lynch and his partner Mrs Lynch, Mr Lynch told the learned Magistrate that Mrs Lynch had ‘never been a part of the business’ and the learned Magistrate struck out the proceedings against her.  (Oddly, her name appears as a co-appellant in Mr Lynch’s written submissions in these proceedings, but not in his application for leave to appeal.)

   [1]        Transcript 1-10.48.

9. Much is made, in Mr Lynch’s submissions, of a receipt which he says he gave Mr Church and which, he says, showed on its face that Mr Lynch did not know the year of manufacture of the engine, or the serial number.  Mr Church’s evidence was, however, that neither he nor his son, who collected the engine, received a receipt and he has been unable to obtain a copy.  Although the learned Magistrate does not make any specific finding about this question, it is implicit in his decision that he preferred Mr Church’s evidence.

[10]  This is a case in which an engine sold by a trader to a consumer was not, the learned Magistrate found, what it was represented to be.  While the trader claims he disabused the purchaser of errors which, he now admits, were contained in the original advertisement, the learned Magistrate did not accept that evidence.  That is unsurprising in circumstances where, for example, the trader Mr Lynch agrees that he did not tell Mr Church that he was selling the engine on consignment.

[11]  The sole duty of the Appeal Tribunal is to determine whether there is an error in the primary decision, warranting the grant of leave to appeal.  It is not the Appeal Tribunal’s task to decide where the truth lay between the competing versions as given by the parties.  The learned Magistrate conducted the proceedings, with respect, fairly and well and he provided typed reasons for his decision which explain how and why he reached it.

[12]  Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief.  Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?

[13]  There is no reasonably arguable case of error in the primary decision nor, it may be observed, anything to suggest Mr Lynch has a reasonable prospect of obtaining a different outcome if his appeal is allowed to proceed.  There is nothing to suggest any substantial injustice, caused by any error, and the application for leave to appeal should be refused.