Meier v Macdermott
[2011] QCATA 159
•29 June 2011
| CITATION: | Meier and Anor v Macdermott and Anor [2011] QCATA 159 |
| PARTIES: | Mr Toby Meier Mrs Dolores Meier |
| v | |
| Mr James Macdermott Mrs Lina Marcella Macdermott |
APPLICATION NUMBER: APL030-11
| MATTER TYPE: | Appeals |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Richard Oliver, Senior Member Peta Stilgoe, Member |
DELIVERED ON: 29 June 2011
DELIVERED AT: Brisbane
ORDERS MADE: Leave to appeal refused.
| CATCHWORDS: | MINOR CIVIL DISPUTE – application for leave to appeal – where contract provided that appliances would be in good working order – where pool equipment not in good working order – whether pool equipment is an appliance – whether grounds for leave to appeal Fox v Percy (2003) 214 CLR 118 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Mr Oliver
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.
Ms Stilgoe
Mr and Mrs Meier bought a house from Mr and Mrs Macdermott. Special condition 3 of the REIQ contract provided:
“All appliances included in the contract (e.g. air conditioner dish washer, hot water system etc) are to be in good working order”.
The chattels included in the sale nominated, among other things:
“dishwasher and pool equipment (including automatic pool vacuum)…dryer and bar fridge…& 3 air conditioners”.
The contract settled on 19 April 2010. In May 2010, Mr and Mrs Meier established that the pool filter was “not effective”. They sought recovery of the cost of a replacement pool filter and pump from Mr and Mrs Macdermott in the sum of $1,650. They were wholly unsuccessful.
Mr and Mrs Meier have appealed the decision of the learned Member on the ground that relevant facts were not taken into account by the learned Member. In particular, Mr and Mrs Meier reject two comments by the learned Member:
a) “I do not necessarily believe everything I read in Google”.
b) I do not consider that the pool vacuum and filter are appliances for the purpose of the contract.
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?
Although resort to online research when determining the meaning of words is not prohibited, it is more usual for courts and tribunals to consult publications such as the Oxford Dictionary or the Macquarie Dictionary. Perhaps this is what the learned Member was trying to convey in his comment. In itself, the comment is not a ground for leave to appeal.
The real question is whether the learned Member erred in determining that the pool equipment was not an “appliance” within the meaning of the contract. That is a question of fact.
The Macquarie Dictionary defines “appliance” as:
“an instrument, apparatus or device, especially one operated by electricity and designed for household use.”
It is apparent from the transcript[1] that the learned Member defined appliance as an internal appliance, one used in the home. When Mr Meier told the learned Member that the pool equipment was internal because it was “under the house”[2], the learned Member distinguished between an appliance used in the house and an appliance, like the pool equipment, that is used outside the house.[3]
[1] Page 3, line 44.
[2] Transcript page 3, line 46.
[3] Transcript page 4, line 1.
It is not the appeal tribunal’s task to determine whether there is a different interpretation of the term “appliance” or even whether there is a better interpretation. The sole function of the appeals tribunal is to determine whether the tribunal’s interpretation is capable of being supported by the evidence[4].
[4] Fox v Percy (2003) 214 CLR 118 at 129 per Gleeson CJ, Gummow and Kirby JJ.
The learned Member’s interpretation is capable of being supported by the factual matrix before him:
a) The examples of “appliance” given in special condition 3 of the contract, by including the examples of the hot water system and air conditioners, indicate that the parties did not intend to limit the term to what is commonly referred to as domestic appliances; such as dishwashers, refrigerators, toasters and kettles.
b) The clause relating to inclusions is of no assistance to Mr and Mrs Meier in determining the parties’ intention. Chattels that are clearly not appliances, such as tables and chairs, are nominated as included chattels. All that can be inferred from the clause is that the pool equipment was to be included as a chattel. Indeed, if any inference is to be drawn, it is that the specific reference to pool equipment in this clause, and the omission in special condition 3, suggests that “appliance” did not include the pool equipment.
c) Mr and Mrs Meier had recourse to the standard building inspection clause. A building inspection might conceivably pick up problems with pool equipment which can be inspected and may show evidence of leaks and corrosion but it is unlikely that it an inspection would pick up problems with the operation of a dish washer, air conditioner or hot water system.
d) The tribunal has no evidence of the parties’ intention except for the statements of the parties themselves. Neither party gave evidence of the circumstances in which the special condition was written, nor was the real estate agent asked to provide a statement.
There is no question of general importance that should be determined by the appeals tribunal; there is no reasonably arguable case that the learned Member 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.
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