Midgley v PDD Group Pty Ltd

Case [2020] QCATA 40

QUEENSLAND CIVIL AND


ADMINISTRATIVE TRIBUNAL

CITATION:

Midgley v PDD Group Pty Ltd [2020] QCATA 40
PARTIES: PDD GROUP PTY LTD     

(Applicant)

v
GERARD MIDGLEY   

(Respondent)

APPLICATION NO:

APL192-19

ORIGINATING APPLICATION NO:

MCD058-19 Brisbane

MATTER TYPE:

Appeals

DELIVERED ON:

10 March 2020

HEARING DATE:

8 March 2020

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes,  Member

ORDERS:

The application for leave to appeal is refused.
CATCHWORDS:

APPEAL – APPLICATION FOR LEAVE TO APPEAL –  consumer transaction – purchase of ride on mower – respondent as supplier – whether goods of acceptable quality – where failure attributed to faulty air cleaner – whether goods properly maintained by applicant purchaser – whether failure of goods caused by improper servicing of component by applicant – where applicant found by tribunal to have contributed to failure of machine – where liability apportioned on a two-third to one third against supplier - whether that finding open on the evidence – where purpose and limitations of an application for leave set out - where respondent tendered inadmissible material on application for leave – where no error in primary decision – where leave to appeal refused

Queensland Civil and Administrative Tribunal Act 2009 (Qld) section 143
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Clarke v Japan Machines (Australia) Pty Ltd [1984[ 1 Qd R 404
Deputy Commissioner of Taxation v Ahern [1988] 2 Qd R 158

Drew v Bundaberg Regional Council [2011] QCA 359
Felton and Anor v Raine and Horne Real Estate [2011] QCATA 330

Fox v Percy (2003) 214 CLR 118
Franklin &  Ors v Burleigh Town Village Pty Ltd [2014] QCATA 183
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
Grewal v Di Camillo [2014] VSC 640

JM v QFG [2000] 1 Qd R 373

Mickelberg v The Queen (1989) 167 CLR 259

Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611
QUYD Pty Ltd v Marvass Pty Ltd  [2009] 1 Qd R 41; [2008] QCA 257

Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014

Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331

Snell v Moynihan [2011] QCATA 316

Thompson and Anor v Jedanhay Pty Ltd [2012[ QCATA 246
W (an infant), In Re [1971] AC 682

APPEARANCES & REPRESENTATION:

The applicant was represented by Mr D Stevens, a director of PDD Group Pty Ltd

The respondent appeared in person

REASONS FOR DECISION

  1. On 22 July 2016 the Applicant (`Midgley’) purchased a $5,000 mower from the Respondent (`PDD). It lasted about nine months. Was the failure caused by some inherent defect, or by Midgley’s poor maintenance, or both? Those are the present questions.

    Consumer purchase

  2. It is common ground that PDD was the supplier of the mower, and Midgley was a consumer, within the meaning of the Competition and Consumer Act 2010 (Cth) (`the Act’) Division 1, `Consumer Guarantees’.

  3. By virtue of section 54 of the Act PDD guaranteed…

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Details
AGLC
Midgley v PDD Group Pty Ltd [2020] QCATA 40
Case
[2020] QCATA 40
Decision Date

CaseChat Overview and Summary

Midgley v PDD Group Pty Ltd involved a dispute between the purchaser of a ride-on mower, Mr. Midgley, and the supplier, PDD Group Pty Ltd. Mr. Midgley claimed that the mower was not of acceptable quality as required under the Australian Consumer Law. The primary issue before the court was whether the defects in the mower were due to the supplier's fault or if they resulted from Mr. Midgley's maintenance of the air cleaner component. The tribunal had found that Mr. Midgley contributed to the failure of the mower, apportioning liability at two-thirds to the supplier and one-third to the purchaser. The court was required to determine if this finding was open to the tribunal based on the evidence and whether the purchaser had misused the mower, thereby solely being responsible for the defect.

The court examined the evidence presented by both parties and found that the tribunal was entitled to conclude that Mr. Midgley was only partly responsible for the failure of the mower. The court emphasised that the primary decision did not contain any errors and that the tribunal had correctly assessed the evidence. The court further noted that the supplier had tendered inadmissible material during the application for leave to appeal, which did not affect the outcome of the case. The court concluded that there was no prospect of a reasonable argument that an appellable error had occurred.

In light of the above findings, the court refused the application for leave to appeal. The decision of the tribunal was upheld, and the supplier's liability was apportioned at two-thirds, with the purchaser being responsible for one-third of the failure. The court's reasoning was based on the evidence presented and the tribunal's assessment of that evidence. The application for leave to appeal was refused, and no further appeal was permitted.

ORDER:
The application for leave to appeal is refused.

Orders

Orders of the court

The application for leave to appeal is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Adjudicator was not inattentive to DPP’s evidence on Midgley’s treatment of the air filter, but he declined give it the weight that DPP would have preferred. That was his prerogative - `that is his function’.[26] It is elementary logic that once it was found that Midgley was only partly to blame, and absent any other human intervention, the defect was inherent in the machine as supplied by DPP, and, under the Australian Consumer Law, the legal responsibility of the supplier.[26]Azzopardi v Tasman UEB Industries Ltd (above).Conclusion As already noted, DPP has not identified any specific appellable error, nor do I detect one. The applicant for leave simply reasserts the case that failed at first instance, namely that Midgley so misused the mower that he alone is responsible for the loss. There is no prospect of a reasonable argument that an appellable error has occurred. The application for leave to appeal should be refused.ORDERThe application for leave to appeal is refused.

Ratio Decidendi

Legal Principle Established

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