Marcki Enterprises trading as Ace Fitness Equipment v China Direct Sourcing

[2011] QCATA 205

CITATION: Marcki Enterprises trading as Ace Fitness Equipment v China Direct Sourcing [2011] QCATA 205

PARTIES:	Marcki Enterprises trading as Ace Fitness Equipment
v
China Direct Sourcing

APPLICATION NUMBER:            APL158 -11              

MATTER TYPE: Appeals

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Richard Oliver, Senior Member
Peta Stilgoe, Member

DELIVERED ON:   4 August 2011

DELIVERED AT:   Brisbane

ORDERS MADE:       Leave to appeal refused  

CATCHWORDS : 

MINOR CIVIL DISPUTE – whether grounds for leave to appeal

Dearman v Dearman (1908) 7 CLR 549

Fox v Percy (2003) 214 CLR 118.

Chambers v Jobling (1986) 7 NSWLR 1

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

Mr Oliver

1. In this matter the Appeal Tribunal consisted of Ms Stilgoe, QCAT Member and me. I have had the benefit of reading her reasons in draft. I agree with her reasons, and her conclusions, and the order she proposes.

1. I agree with the observations that the submissions filed by the applicant in support of the application for leave to appeal are unhelpful. The submissions do not attempt to identify any error on the part of the learned Member, and on reading the transcript and the decision none is apparent.

Ms Stilgoe

1. In 2008, Marcki engaged China Direct to locate a supplier of gym equipment in China. China Direct undertook work in that regard and rendered invoices, which Marcki paid. In the course of negotiations for an exclusive distribution agreement, Marcki placed two orders for the supply of gym equipment. China Direct facilitated those orders and charged a fee. Marcki was not happy with the quality of the equipment when it arrived so it withheld payment of invoices totalling $4,169.48. Marcki also brought an application in the tribunal claiming a refund of money it had already paid to China Direct. The learned Member refused Marcki’s claim and ordered that it pay China Direct $4,169.48.

1. Marcki has appealed the learned Member’s decision on these grounds:

a)    The tribunal should recognise that the invoices rendered by China Direct are a contract.

b)    The terms of that contract include promises by China Direct which it did not honour.

c)    What Marcki was promised and what was delivered did not match.

1. Because this is an appeal from a decision of the tribunal in its minor civil dispute jurisdiction, leave is necessary. 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?

1. Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[1]  

   [1]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.

1. An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.[2]  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.[3]

[2]        Chambers v Jobling (1986) 7 NSWLR 1 at 10.

[3]        Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.

1. I have read the transcript with some care. The learned Member made specific findings:

a)    The quality of the equipment is not China Direct’s responsibility but Marcki may have a claim against the Chinese supplier.

b)    Marcki paid China Direct for work done and services provided and there is no evidence that the work done or the services provided was not of an acceptable standard.

c)    In relation to the money paid for China Direct to source the exclusive distribution agreement, China Direct completed most of the work and it was Marcki’s decision not to proceed further. That cannot be a reason to require China Direct to refund the payment.

d)    China Direct did work in relation to the supply of the gym equipment and paid invoices that would have been Marcki’s responsibility in any event. It is no answer to a claim for payment that Marcki was not happy with the quality of the equipment.

1. Marcki’s submissions to the Appeal Tribunal are of no assistance, as they simple reiterate the arguments put at the initial hearing. I agree with the learned Member’s analysis of the evidence and there is no compelling reason for me to come to a different view.

1. There is no question of general importance that should be determined by the Appeal Tribunal; there is no reasonably arguable case that the learned Adjudicator was in error; there is no reasonable prospect of substantive relief on appeal; and there is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.