McMahon v Avery
[2012] QCATA 229
•14 November 2012
| CITATION: | McMahon v Avery [2012] QCATA 229 |
| PARTIES: | Leichelle Louise McMahon (trading as Pet Supersavers) (Appellant) |
| v | |
| Karima Helena Avery (Respondent) |
| APPLICATION NUMBER: | APL031-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 14 November 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for leave to appeal is refused. |
| CATCHWORDS: | SALE OF GOODS – SALE OF GOODS LEGISLATION – ACTIONS FOR BREACH OF CONTRACT – REMEDIES OF BUYER – REMEDY FOR BREACH OF WARRANTY – where sale of domestic dog – where vendor represented dog as docile domestic animal – where purchaser claimed was dangerous dog – where Tribunal found breach of warranty – where Tribunal ordered repayment of purchase price – where vendor seeks to appeal Tribunal findings – where no question of law arising – where no error of fact shown – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009, ss 3, 20, 32, 142 Drew v Bundaberg Regional Council [2011] QCA 359 In Re W (an infant) [1971] AC 682 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257 Robinson v Corr [2011] QCATA 302 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’).
REASONS FOR DECISION
This is a dispute about the purchase of a cocker spaniel with a distinct propensity to bite. The Respondent, Karima Helena Avery (“the Purchaser”), bought the animal from the Appellant, Leichelle Louise McMahon (“the Vendor”), for $550 in April 2011. The claim is for $498, after a deduction for microchipping.
The Purchaser returned the dog to the Vendor after seven days (according to the Purchaser) or four days (according to the Vendor)[1] complaining that, contrary to the Vendor’s representation that it was a docile domestic pet, it “had a savage nature rendering it quite unsuitable” for domestic purposes.[2]
[1]The Adjudicator was inclined to accept the Purchaser on that point: Transcript of Proceedings 12 December 2011, page 8.
[2]Application filed 20 July 2011, Part C.2; Transcript of Proceedings 12 December 2011, page 7 (Avery).
The Purchaser tendered affidavits by four relatives, all deposing that they had suddenly and unpredictably been bitten by the beguilingly named Honey.[3] None of those deponents was cross-examined but according to the Vendor she did not see their material before the hearing.[4] In oral evidence the Purchaser testified that she was a witness to several of the attacks, and that she herself was bitten when she came to the assistance of her mother.
[3]Affidavit of K Ibrahim sworn 9 December 2011; Affidavit of G P Avery sworn 9 December 2011; Affidavit of Jarrid Avery sworn 9 December 2011; Affidavit of Caleb N Avery sworn 12 December 2011.
[4]Transcript of Proceedings 12 December 2011, page 4.
The Purchaser admitted that when she bought Honey she was aware that it had “previous problems” “but not to the extent of the problems that the dog had”.[5] According to the Vendor, before the sale took place, “we went through a whole history of [Honey] being mistreated, how she had a dominant personality” and spent “maybe two hours” explaining what the Purchaser “needed to do and the sort of behaviour of the dog.”[6] However, after consulting a ‘dog behaviourist’ they “[got] her back into the same routine ... She’d jump in the car ... into the shop. She’s sort of lived during the day at the store, so she’s obviously around lots of people, lots of dogs, lots of kids and she’s used to all the attention ... I felt she was back to her routine.”[7]“No way would we ever re-home a dog that was aggressive or had bad behavioural issues.”[8] “She’s not a dangerous dog. She wouldn’t be re-homed in that case.”[9] The Adjudicator’s finding that the Vendor represented that the dog was “not dangerous” is supported by the Vendor’s insistence in her notice of appeal: “We have a behavioural assessment saying the dog is fine and not aggressive”.[10]
[5]Transcript of Proceedings 12 December 2011, page 3.
[6]Transcript of Proceedings 12 December 2011, page 2.
[7]Transcript of Proceedings 12 December 2011, page 3 (McMahon).
[8]Transcript of Proceedings 12 December 2011, page 2 (McMahon).
[9]Transcript of Proceedings 12 December 2011, page 7 (McMahon).
[10]Application for leave to appeal Part D.
The Adjudicator noted the Vendor’s claim that “some retraining was undertaken and [that she] considered the dog was fit for sale as a domestic pet”.[11]He did not accept that that assurance was warranted, finding instead that the dog was “unpredictable, unstable and dangerous”[12] and allowing the Purchaser’s monetary claim.
[11]Transcript of Proceedings 12 December 2011, page 7; Application for leave to appeal Part D.
[12]Application for leave to appeal Part D.
In the Vendor’s Application for Leave to Appeal no holds are barred. She stigmatises the Purchaser and her three witnesses as liars. She adds that the Purchaser incited her witnesses to perjury.[13] These scandalous allegations do not enhance her case. The basis for her submissions is a claim that the dog was returned before the days when the witnesses say it attacked them. The Adjudicator doubted the Vendor on that point.[14] No basis for describing the Purchaser as a liar is apparent, other than the Vendor’s vehement objection to the result of the trial.
[13]Attachment to appeal application page 1.
[14]See footnote 1, above.
In a 3 page annexure to her application for leave the Vendor maintains that “Honey is not a dangerous dog, she is a gorgeous dog (but she does need training).” The same document contains additional material, including the names of no fewer than 28 individuals ready and willing to “vouch [that] Honey is a great dog”. None of this material is admissible unless and until leave is granted, if at all.
Should leave to appeal be granted?[15]
[15]Leave is required by the QCAT Act, s 142(3)(a) and (b).
One purpose of a “leave” requirement is to preclude attempts to conduct retrials on the merits.[16] Leave is not to be given simply because a party desires to re-argue a case rejected at first instance. It is not nearly enough to express disappointment at the original decision, or a subjective feeling that justice has not been done.[17] One must examine the proceedings at first instance to see whether there is a reasonably arguable case of error which, if not corrected, will cause substantial injustice to the applicant.[18] It is not an appealable error to prefer one version of the facts to another, or to attribute more weight to the submissions of witness “A” than to those of witness “B”. Findings of fact will not usually be disturbed if they have rational support in the evidence.[19] Where reasonable minds may differ, a decision cannot properly be called erroneous, simply because one conclusion has been preferred to another possible view.[20] It is not for this Appeal Tribunal to substitute its own decision on the evidence that was put before the Adjudicator.
[16]In contrast see QCAT Act, s 20 (review jurisdiction).
[17] Robinson v Corr [2011] QCATA 302 at [7].
[18]QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257 at [6]; Drew v Bundaberg Regional Council [2011] QCA 359 at [18]-[19].
[19] Fox v Percy (2003) 214 CLR 118.
[20] Minister for Immigration and Citizenship v SZMDS & Another [2010] HCA 16 at [131].
This is precisely the kind of dispute that the legislature wishes to see resolved speedily, informally, economically, and finally.[21] By no stretch of imagination could it be described as one in which further argument, and decision on appeal would be to the public advantage.[22] There is no question of law in this case. Although the Vendor vehemently disagrees with the primary decision, the Adjudicator’s findings of fact were ones that he was perfectly entitled to make. It is not for this Tribunal to disturb findings of fact that were clearly open on the evidence. There is nothing in the Purchaser’s submissions (proper or improper) to warrant the intervention of the Appeal Tribunal. The primary decision is certainly not shaken by the Appellant’s gratuitous and scandalous allegations of perjury and incitement to perjury. The learned Adjudicator was entitled to conclude on the balance of probabilities that the dog sold to the Purchaser as a suitable domestic pet, and which the Vendor still extols as “a gorgeous dog,” actually “had a savage nature rendering it quite unsuitable” for the purpose for which it was sold.
[21] QCAT Act, s 3(b).
[22]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577.
This Application for Leave to Appeal lacks any discernible merit. Leave to appeal must be refused. An application for costs would have deserved very serious consideration.
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