Mansfield v Gemkel Pty Ltd
[2018] QCATA 173
•16 October 2018
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Mansfield v Gemkel Pty Ltd [2018] QCATA 173
PARTIES:
SHANE MANSFIELD
(appellant)v GEMKEL PTY LTD
(respondent)
APPLICATION NO/S:
APL381-17
ORIGINATING APPLICATION NO/S:
MCDO57-17 Brisbane
MATTER TYPE:
Appeals
DELIVERED ON:
16 October 2018
HEARING DATE:
18 September 2018
HEARD AT:
Brisbane
DECISION OF:
Member Howe
ORDERS:
1. Leave to appeal granted.
2. The appeal is allowed.
3. The decision of 4 October 2017 is set aside and the matter returned to the original Justices of the Peace who determined the matter for reconsideration of the issues of acceptable quality and fitness for purpose if necessary with the hearing of additional evidence as deemed appropriate by them.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where flooring product purchased and after laid suffered damage – whether defective product or damage caused by consumer – where issue relevant to determination about guarantee as to acceptable quality not determined at hearing – where an issue in dispute determined without reference to evidence supporting the conclusion – where an issue in dispute not decided - where leave to appeal and the appeal granted to enable the evidence to be considered and the issues appropriately determined
Competition and Consumer Act 2010 (Cth), Schedule 2 (‘Australian Consumer Law’) s 54, s 55
Pickering v McArthur [2005] QCA 294
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
Self-represented by James Binning
REASONS FOR DECISION
Mr Mansfield owns a home at Alderley. He wanted to enclose under the house and as part of the work add a new floor covering down stairs. He purchased spotted Gum laminate flooring from the respondent and had the flooring installed by a tradesman.
The flooring consisted of lengths of panels which fitted together to form what is described as a floating floor. The flooring was supplied in or about October 2014 and the flooring laid in about November 2014.
In April Mr Mansfield complained about the floor panels swelling in a great number of places throughout the floor. The manufacturer, Embelton, inspected the floor on
13 April 2015 and stated in a warranty inspection report of that date that the problem probably resulted from children spilling water on the floor or the use of a steam mop to clean it.
Mr Mansfield wanted the respondent to refund him the cost of the flooring. The respondent refused on the basis there was nothing wrong with the product and the problem had been caused by the home owner’s use or maintenance.
Mr Mansfield commenced proceedings in the Tribunal claiming $2,356 for the flooring plus an unspecified amount for ‘labour’. Given the monetary jurisdiction of the Tribunal it is unusual that Mr Mansfield was allowed to proceed to hearing with that additional unspecified claim included. However the matter did proceed to a hearing before Justices of the Peace on 4 October 2017 where Mr Mansfield’s claim was dismissed.
Mr Mansfield wants to appeal that decision.
Given this is an appeal from a decision made in the Tribunal’s Minor Civil Dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.[1]
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i).
Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.[2]
[2]Pickering v McArthur [2005] QCA 294, [3].
From the submissions filed by Mr Mansfield pursuant to directions clarified by him at the hearing of the application for leave to appeal, it appears he has 4 grounds of appeal:
(a)That the Tribunal erred in finding that there was evidence of excessive moisture affecting the floor.
(b)That the Tribunal erred by speculating without evidence that the cause of the problem with the floor was excessive moisture or that water could have come from an adjacent shower or laundry.
(c)That the Tribunal erred in failing to determine and take into account the issue raised by the appellant that no maintenance instructions had been supplied by the respondent about maintenance of the laminate floor.
(d)That the Tribunal erred in finding the homeowner should have been aware that the floor should not be subject to excessive surface moisture because it is common knowledge that timber laminate flooring is susceptible to damage from excessive moisture.
Excessive Moisture Caused the Problem
Mr Mansfield says there was no evidence before the Justices of the Peace to enable them to conclude that the problem with the floor was caused by excessive moisture applied to the top of the boards.
Initially I mention, throughout the hearing of the application for leave to appeal,
Mr Mansfield seemed to suggest that his opponent bore all onus’ of proof in the matter below and the standard of proof required of the respondent was beyond reasonable doubt. That is not of course correct given this was a civil rather than a criminal matter. Leaving aside the presence of reverse onus associated with some claims under the Australian Consumer Law provisions (see below concerning that law) the standard of proof required was that the Justices of the Peace be satisfied about an issue on the balance of probabilities. This standard was indeed referred to by them at hearing.
The matter first came before the Tribunal on 21 June 2017, when Mr Mansfield was directed to arrange for an experts report to be prepared. The matter was adjourned to enable him to do that.
Mr Mansfield arranged for a report to be prepared by Mr Jim Hilston of Hilston Wood Floors, who was a member of the Australian Timber Flooring Association. No objection was taken to the expertise of Mr Hilston by any party and indeed both parties relied on the report he produced at hearing.
His report dated 26 August 2017 was filed in the Tribunal. The report followed an inspection on 4 August 2017. In it Mr Hilston states:
My opinion on viewing your floor was that the concerns observed were likely to be related to moisture introduced to the floor from the surface – such as may happen when the floor is cleaned with a wet mop.
Mr Hilston certainly does not make any suggestion in his report that the product itself was in any way defective.
In the warranty inspection report from Embelton referred to previously the manufacturer said the cause of the problem with the floor was water related swelling between the boards in the bevel.
The Justices of the Peace relied on both reports in concluding on the balance of probabilities that the problem with the floor was caused by excessive moisture added to the floor after it was laid.
Additionally Mr Mansfield’s evidence fluctuated about how wet the floor became when it was mopped. He said initially:
Struik JP: When this floor was laid, how did you maintain it?
Mr Mansfield: It would have been initially a very, very damp mop.
Struik JP: Did you do that personally?
Mr Mansfield: No, my wife would have.[3]
[3]Transcript Page 1-13, Lines 17 – 24.
But after that he said it wasn’t a saturated mop.[4] He admitted he wasn’t there when his wife did the mopping and his wife was not present at the hearing to give evidence.
[4]T1-14, L10.
There is nothing in the fact that the Justices of the Peace described the cause of the problem as ‘excessive’ moisture though Mr Mansfield made much of their use of that word which he said was not mentioned in either report. He said the Embelton warranty report made only a reference to spilt drinks or use of a steam mop. Mr Mansfield said there was no steam mop used and spills from glasses of water did not amount to excessive moisture.
The Justices of the Peace considered that the damage to the floor was extensive in area, throughout the bedrooms and living room, and described the comment in the Embelton warranty report about spills of glasses of water as a red herring.
Simply put, both reports concluded the problem was most likely attributable to the the floor being made wet after it was laid.
Additionally there was an email from Mr Taylor for Embelton dated 22 May 2015 to Mr Mansfield advising him that the moisture reading of the floor panels was 16% where it should have been 5 to 6% only.[5] In that email the words ‘excessive moisture’ is used.
[5]See Appendix J to Mr Mansfield’s original filed material.
As stated, the Justices of the Peace were entitled to conclude on the evidence before them that the problem with the floor was attributable to excessive moisture applied to the floor after it was laid. There is no error here on their part.
The Water Damage was Possibly Attributable to an Adjacent Shower or Laundry
Mr Mansfield complains here that the Justices of the Peace speculated that the water on the flooring came from a shower or laundry and again that there was no evidence that there was any excessive moisture.
The issue about excessive water has been addressed.
The submission is that mention of water possibly coming from a shower or laundry was speculation and the Justices of the Peace could not conclude on that basis that the floor suffered water damage. It is clear that the intent of the comment by the Justices of the Peace was to show that regardless of how the water came to be there, it could not be attributable to the supplier.
The Justices of the Peace said in their reasons for decision:
Whether that excessive moisture applied to the surface of the flooring was from an excessively wet mop used for cleaning or by some other method, we cannot be sure. We are satisfied that it was not caused by the occasional spilled drink. We could speculate that it may have been caused from water escaping from the laundry or shower room. In any event, we find that the damage was caused by actions by the buyer under the control of the consumer and not the trader.[6]
[6]T1-51, L21-26.
Perhaps the Justices of the peace could have expressed themselves with more clarity but consideration must be given to the difficulty of ex tempore decision making without the benefit of written deliberation. There is no error here which obviates the finding by the Tribunal at first instance.
Fit for Disclosed Purpose
Grounds 3 and 4 may conveniently be considered together.
The Justices of the Peace gave the following reason for finding the flooring product was fit for purpose:
It was a timber laminate floor. It is common knowledge, in our view, that timber laminate is susceptible to damage from excessive moisture. That does not mean that the floor was not fit for the purpose outlined by the consumer with reference to the plans provided. There would have been no expectation that a floor would be subjected to excessive surface moisture, and had it not been subjected to excessive surface moisture, we find that the floor would have performed as expected by the consumer. We find that the product was fit for purpose.[7]
[7]T1-51, L31-37.
Mr Mansfield submits that there was no consideration given to his evidence that there was no maintenance information provided with the boxes of product. Certainly the Justices of the Peace said:
Was the product fit for purpose? We are satisfied that the consumer should have been aware that the floor should not be subjected to excessive surface moisture. We make no finding in respect of the provision of a document of maintenance instruction.[8]
[8]T1-51, L26-29.
Mr Mansfield asks how he was to know that the product would be compromised by the application of excessive water. The Justices of the Peace concluded that it is common knowledge that timber laminate is susceptible to damage from excessive moisture.
Mr Mansfield challenges that finding. He submits the Justices of the Peace needed evidence to support the finding.
Mr Mansfield is correct in respect of both complaints.
The Justices of the Peace made no finding about whether or not any maintenance instructions were given to him and more specifically that there was none in one box he opened after the floor was laid.
They also concluded that it was common knowledge that timber laminate is susceptible to damage from excessive moisture. In respect of the latter finding they effectively concluded the effect of water on laminate flooring was a fact so commonly known that everyone accepts it as true. In this they very clearly made a mistake. They could not take judicial notice about such a proposition.
Mr Mansfield’s complaint from outset was either that the flooring was not of acceptable quality or the product was not fit for its intended purpose or both.[9] Though he did not specify the provision or legislation he relied on about that, it is clear his assertions go to potential breaches of the guarantees required to be given under respectively ss 54 and 55 of the Australian Consumer Law (‘ACL’) set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
[9]See attachment to Application for Consumer Dispute.
Section 54 of the ACL provides:
54 Guarantee as to acceptable quality
(1) If:
(a) a person supplies, in trade or commerce, goods to a consumer; and
(b) the supply does not occur by way of sale by auction;
there is a guarantee that the goods are of acceptable quality.
(2) Goods are of acceptable quality if they are as:
(a) fit for all the purposes for which goods of that kind are commonly supplied; and
(b) acceptable in appearance and finish; and
(c) free from defects; and
(d) safe; and
(e) durable;
as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3).
By s 54(3), matters to be taken into account for the purpose of subsection (2) include any statements made about the goods on any packaging or label on the goods. Accordingly, whether there were instructions included with the product was a relevant issue, though not necessarily determinative, in deciding Mr Mansfield’s claim concerning a breach of the guarantee as to acceptable quality.
Subsection (6) might very well then have fallen for consideration:
(6) Goods do not fail to be of acceptable quality if:
(a) the consumer to whom they are supplied causes them to become of unacceptable quality, or fails to take reasonable steps to prevent them from becoming of unacceptable quality; and
(b) they are damaged by abnormal use.
Section 55 of the ACL deals with a guarantee provided by sellers that goods are reasonably fit for any disclosed purpose. Though the guarantee requires only that the goods be reasonably fit, the Justices of the Peace do not explain how the goods are reasonably fit for purpose given the mistaken reliance on a disputed proposition that it is common knowledge that timber laminate is susceptible to damage from excessive moisture.
There are no pleadings in the Tribunal and it is sometimes very difficult to understand what legal basis of claim an applicant relies on in a minor civil dispute. However here Mr Mansfield did use the words acceptable quality of the flooring and its fitness for purpose in his initial application, though during the hearing his focus appears to have been only on the phrase ‘fitness for purpose’. The claims were fairly clearly referrable to the guarantee provisions of the ACL and they fell due for consideration by the Justices of the Peace. In failing to address them appropriately the Justices of the Peace fell into error of law.
There is insufficient evidence taken at the hearing to allow the Appeal Tribunal to set aside the decision and substitute another decision in lieu. The matter may well turn on credibility. It is appropriate that the matter be returned to the Justices of the Peace who heard the matter at first instance for reconsideration with the hearing of additional evidence if necessary as deemed appropriate by them to determine the issues about acceptable quality and fitness for purpose.
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