Malic v Hotbody Pty Ltd t/as Tattxtract

[2016] QCATA 60

CITATION: Malic v Hotbody Pty Ltd t/as Tattxtract [2016] QCATA 60

PARTIES	CHRISTINE MALIC (Applicant/Appellant) V HOTBODY PTY LTD T/AS TATTXTRACT (Respondent)
APPLICATION NUMBER:		APL519-15

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Carmody

DELIVERED ON: 22 April 2016

DELIVERED AT: Brisbane

ORDERS MADE:

THE APPEAL TRIBUNAL ORDERS THAT:

1.    Leave to appeal is refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where the applicant claims she was sold unsafe and unusable goods – where the tribunal dismissed the claim – whether the finding was open to the tribunal – whether the applicant was given an adequate opportunity to be heard

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers without the attendance of either party in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”).

REASONS FOR DECISION

1. This is an application for leave to appeal against a decision of the Tribunal dismissing a claim in a minor civil dispute in which the applicant sought a refund of $25,000 for the purchase of non-laser tattoo removal equipment.

The context

1. In the hearing below the applicant claimed the machine she was sold was not accompanied by the required intellectual property and “treatment kits” for its function as promised, unfit for its stated purpose, that is “unusable” and “unsafe”.

2. The applicant’s substantive complaint is that the machine she bought was an unauthorised copy of a patented technology distributed within Australia under license and, therefore, she cannot buy treatment kits or legitimately use the product or patented methodology.[1]

   [1]        Letter from Tatt2Away to applicant, dated 14/9/2015.

3. She is also concerned, based on online Electrical Safety Authority information, that the disputed product is unapproved and uncertified “declared electrical equipment” illegal to sell under Australian law and hazardous due to non-compliance with Australian standards.

4. The Tribunal dismissed the applicant’s claim for want of supporting evidence, finding “there was no agreement whereby the applicant was to be provided with a (Tatt2Away) machine” based on the applicant’s failure to produce a signed original of the document relied on.

5. Nonetheless, a finding was also made that the applicant was provided with some intellectual property “by way of training… on the same machine that she purchased and information on how and where to source products”.

6. Finally, the Tribunal found that the applicant was originally satisfied with the machine provided based on text messages produced by the respondent.

7. The stated grounds and brief details of orders sought in the Form 39 can be summarised as that:

   ·the Magistrate was “obviously not in a fit state to serve on the day” of the hearing as he had a migraine, which prevented him from being willing to allow the applicant to lead the totality of her evidence;

   ·the machine purchased is “totally unsafe, not to the Australian Standards, unusable… no basic warranty… therefore not fit for purpose”;

   ·“the intellectual property (the respondent) provided belonged to someone else”;

   ·the respondent failed to disclose the above matters despite knowing about them; and

   ·the respondent’s evidence in the hearing was incorrect.

8. In addition, she asserts a denial of natural justice based on insufficient time being allowed to present her case to the Tribunal.

Decision

1. To satisfy the “gateway criterion” for leave to appeal the applicant has the task of demonstrating legal or factual error which if not corrected on appeal, will result in substantial injustice to her. She must have a more than arguable case.

2. The misrepresentations alleged to constitute the respondent’s breach of contract were simply not made out. A review of the transcript does not support her asserted denial of natural justice or that she was not given adequate opportunity to be heard.

3. The applicant’s claim was rejected because the found facts did not support it to the required standard. The Tribunal, as it was entitled to do, believed the respondent’s evidence that the sale was of a second hand machine, as the applicant well knew, and that the alleged warranties or promises were not a part of the transaction. In other words, the applicant got what she paid for; nothing more, nothing less.

4. The applicant’s sense of grievance about that does not constitute appealable error. Nor does loss from making a bad business deal with a former friend.

5. Accordingly, an appeal is not warranted. The application is refused.