Misura v Harvey - [2022] QCATA 108

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Misura v Harvey & Anor [2022] QCATA 108

PARTIES: ZORAN MISURA

(applicant\appellant)

v

NEIL HARVEY AND THOMSON FAMILY RACING PTY LTD

(respondent)

APPLICATION NO/S:

APL140-21

MATTER TYPE:

Appeals

DELIVERED ON:

20 July 2022

HEARING DATE:

6 May 2022

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:
1.   Leave to appeal against Neil Harvey is granted.

2.   The decision of the Tribunal of 20 April 2021 is set aside.

3.   Neil Harvey must pay to the Applicant the sum of $828.00 by 23 September 2022

4.   Leave to appeal against Thompson Family Racing Pty Ltd is refused.

CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – LEAVE TO APPEAL – CONTROL OVER PROCEEDINGS where the applicant purchased a second motor vehicle from Mr Harvey – where Thompson Family Racing Pty Ltd provided a safety certificate for the vehicle – where Mr Harvey removed the radio and speakers from the vehicle prior to its collection by the applicant – where tribunal found Mr Harvey was not a trader – whether any justiciable claim against Thompson Family Racing Pty Ltd – whether consideration of the whole of the definition of trader in schedule 3 – whether Mr Harvey a trader.

Queensland Civil and Administrative Tribunal Act ss 142(3)(a)(i) and Dictionary Schedule 3

Terera & Anor v Clifford [2017] QCA 181.

Bradlyn Nominees Pty Ltd v Saikowski [2012] QCATA 39.

C & k Home Investment Pty Ltd ATF v Sye & Anor [2022] QCATA 061

REPRESENTATION & APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

This is an appeal from a decision of the Tribunal in the minor civil disputes jurisdiction in relation to the sale of the motor vehicle for $1,000 by the Mr Harvey on behalf of an undisclosed principal to Mr Misura. The vehicle was a 2001 Kia Sportage. Mr Misura brought the claim because he contends that the vehicle was not roadworthy, the engine was overheating and that Mr Harvey removed the radio and speakers from the vehicle between when he agreed to buy it and when he collected it. It cost him $353 to replace the radio and speakers and this formed part of his claim.
The claim against Thompson Family Racing Pty Ltd (“Thompson”) was in relation to the safety certificate prepared by its agent Mr Yeomans, in order for the vehicle to be registered to Mr Misura. Mr Misura alleged that the safety certificate was dubious because the car was not roadworthy and was overheating. He sought orders that Thompson fix the car and make it roadworthy. This claim was dismissed because clearly this is not a remedy available to the Tribunal.
As this is an appeal from a decision in the minor civil disputes jurisdiction it is not an appeal as of right. Section 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Misura v Harvey

Details

AGLC: Misura v Harvey [2022] QCATA 108
Case: [2022] QCATA 108
Decision Date: 20 July 2022

CaseChat Overview and Summary

Misura v Harvey involved a dispute between the Applicant, who had purchased a second-hand motor vehicle from Mr Harvey, and Mr Harvey himself. The Applicant sought relief in relation to the condition of the vehicle, which was certified as safe by Thompson Family Racing Pty Ltd, a third party. The Applicant alleged that Mr Harvey had removed the radio and speakers from the vehicle before its collection, despite the safety certificate. The dispute was heard and determined by the Tribunal, which found that Mr Harvey was not a trader under the Australian Consumer Law. The Applicant appealed this decision, seeking relief against both Mr Harvey and Thompson Family Racing Pty Ltd.

The central legal issue before the court was whether the Tribunal had erred in its finding that Mr Harvey was not a trader. The Applicant argued that the Tribunal had failed to consider the full definition of "trader" under the Australian Consumer Law, which includes anyone who supplies goods or services in the course of business. The Applicant contended that Mr Harvey's sale of the motor vehicle constituted a transaction in the course of business, thereby making him a trader. The Applicant also sought to establish a justiciable claim against Thompson Family Racing Pty Ltd for the safety certificate, arguing that the certificate was misleading and that the company had a duty of care towards the Applicant.

In determining the appeal, the court examined the definition of "trader" and the evidence presented to the Tribunal. The court found that the Tribunal had considered the definition of trader but had concluded that Mr Harvey's sale of the motor vehicle did not constitute a transaction in the course of business. The court upheld this finding, noting that the evidence did not support the conclusion that Mr Harvey was engaged in regular sales of motor vehicles as part of a business. Regarding Thompson Family Racing Pty Ltd, the court held that there was no justiciable claim against the company, as it had not been party to the transaction between the Applicant and Mr Harvey and had no duty of care towards the Applicant. The court granted leave to appeal against Mr Harvey but refused leave to appeal against Thompson Family Racing Pty Ltd.

The court ordered that leave to appeal against Mr Harvey was granted, and the decision of the Tribunal was set aside. Mr Harvey was required to pay the Applicant the sum of $828.00 by 23 September 2022. The court refused leave to appeal against Thompson Family Racing Pty Ltd, leaving the Tribunal's decision in relation to the company undisturbed.

Orders

Orders of the court

1. Leave to appeal against Neil Harvey is granted.

2. The decision of the Tribunal of 20 April 2021 is set aside.

3. Neil Harvey must pay to the Applicant the sum of $828.00 by 23 September 2022

4. Leave to appeal against Thompson Family Racing Pty Ltd is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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