Nerang Kitchen Centre v Mackie
[2014] QCATA 125
•12 May 2014
| CITATION: | Nerang Kitchen Centre v Mackie [2014] QCATA 125 |
| PARTIES: | Trevor Hyland t/as Nerang Kitchen Centre (Applicant/Appellant) |
| v | |
| Fiona Mackie (Respondent) |
| APPLICATION NUMBER: | APL567-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 12 May 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where kitchen supplied – where components of kitchen defective – where tribunal ordered compensation for defective components – whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549 |
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 (Qld) (QCAT Act).
REASONS FOR DECISION
Mr Hyland supplied a flat pack kitchen to Ms Mackie. On installation of the kitchen, Ms Mackie noticed that the bench top was not the right size, chipped and pitted. Within a month of installation, Ms Mackie noticed that the coating on the drawers and cupboard doors was chipping and flaking. Ms Mackie filed a claim for Mr Hyland to refund the cost of the kitchen and pay the cost of removing the kitchen. The tribunal ordered the cost of rectification.
Mr Hyland wants to appeal that decision. He says that he did not think the outcome was fair considering the effort he put into trying to resolve the dispute. He also says that he thought the amount of paperwork he sent to the tribunal would make his position clear.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as His Honour then was) in Pickering v McArthur[1]:
There are numerous authorities, in varying language but with unvarying emphasis, that leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.
[1][2005] QCA 294 at [3].
The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[2] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[3]
[2]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[3]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
Mr Hyland did not attend the hearing of this dispute. The learned Adjudicator notes Mr Hyland’ letter of 4 May 2012 in which he conceded the finish was defective[4]. The learned Adjudicator noted that Ms Mackie did not accept an offer that Mr Hyland deliver replacement doors, in a different finish[5]. The learned Adjudicator did not note, but it makes no difference to his decision, that Ms Mackie also rejected the offer of replacement doors because there was no offer to cover the cost of installation[6].
[4]Transcript page 1-16, lines 1 - 23.
[5]Transcript page 1-16, lines 28 - 32.
[6]See Ms Mackie’s email of 7 June 2012.
Mr Hyland accepted no responsibility for the bench top. The learned Adjudicator found that the bench top was defective, that the defects were not caused by the installation and, therefore, it was covered by the 10-year guarantee[7]. The evidence can support that finding and I can find no compelling reason to come to a different view.
[7]Transcript page 1-16, lines 41 - 47; page 1-17, lines 1 – 15.
There is nothing in the material to persuade me that the learned Adjudicator should have taken a different view of the facts. There is no reasonably arguable case that the learned Adjudicator was in error. Leave to appeal should be refused.
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