Nielsen v Ormerod - [2012] QCATA 209

CITATION:

Nielsen v Ormerod [2012] QCATA 209

PARTIES:	Sigfred Nielsen (Applicant/Appellant)
v
Colleen Joyce Ormerod (Respondent)

APPLICATION NUMBER:

APL275-12

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Alan Wilson, President

DELIVERED ON:

23 October 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application for a stay is refused.

2. The application for leave to appeal is refused.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – PROCEDURE AND EVIDENCE – PROCEDURAL FAIRNESS – where appellant sold vehicle to respondent – where vehicle not fit for purpose for which it was sold – where Tribunal ordered remedy to place parties back in position they would have been prior to sale of vehicle – where appellant applied for stay of decision and appeal – whether appellant denied procedural fairness

Queensland Civil and Administrative Tribunal Act 2009, ss 13, 32

Baltic Shipping Co v Dillon (1993) 67 ALJR 228

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 dispute arose out of a transaction in which Mr Nielsen purported to sell a bus to Ms Ormerod for $16,500 which, by agreement, she paid by transferring two other motor vehicles to Mr Nielsen, and paying him $2,500[1].
[1] The two vehicles were, according to Ms Ormerod’s evidence, valued at $14,000.
The transaction was recorded in a document dated 4 May 2011.
In February 2012 Ms Ormerod began proceedings in QCAT’s minor civil disputes jurisdiction seeking, in effect, to have the entire transaction set aside on the basis that the bus was mechanically unsound and unroadworthy and that, although Mr Nielsen had advertised it as being registered until 1 January 2012, shortly after the transaction the true owner of the bus, a company called Buslink Pty Ltd, cancelled the registration.
The matter came on for hearing before a Magistrate, sitting as a QCAT Member, at Maroochydore on 25 July 2012. After hearing from the parties, a witness called Dennis Murphy associated with Ms Ormerod, and Mr Nielsen’s wife Lynelle the learned Magistrate concluded (giving reasons for her decision) that Ms Ormerod was entitled to a remedy that placed “…the parties back in the position they would have been prior to the sale of this bus” and ordered that Mr Nielsen pay her $16,500 whereupon he be at liberty to collect the bus from its present location at a caravan park on the Sunshine Coast.
Mr Nielsen has sought leave to appeal that decision. He also seeks a declaration that, pending the determination of his application, the decision of the learned Magistrate is stayed. For the reasons that follow, his application to appeal must fail. It follows that his stay application must also be refused.
The Appeal Tribunal directed that Mr Nielsen’s applications would be heard and determined on the papers and the parties have filed and exchanged written submissions.
Mr Nielsen’s application for leave to appeal and his submissions indicate he is represented by a barrister. The grounds upon which leave is sought, and the grounds said to support the appeal, may be summarised as allegations that the learned Magistrate made errors of fact and law and also conducted the hearing in a way which denied procedural fairness and natural justice to Mr Nielsen.

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?

I have read the transcript of the proceedings. Mr Nielsen’s claims that he was denied procedural fairness involve three complaints: that he did not understand that he was attending for a hearing but thought the proceeding on 25 July was a mediation; that he was denied the chance to call a witness; and, that the learned Magistrate wrongly rejected his attempt to tender an unsigned statement from a witness.
He agrees he received a notice telling him the hearing would take place on the nominated date. He also conceded that he had previously undergone a mediation process on 11 April, which was unsuccessful. He claims he was told by a Court official that the proceeding on 25 July was a mediation, and not a hearing. In the circumstances just described it was unsurprising that the learned Magistrate doubted that assertion, and required that the matter proceed. In the face of a notice advising of a hearing, and in light of the previous mediation, there was no sensible basis upon which Mr Nielsen could expect anything else.
The transcript shows that Mr Nielsen conducted his own case quite adequately; that he appeared to understand all the issues and Ms Ormerod’s case against him; and, that he was able to give his own evidence and call his wife for that purpose, and make relevant submissions to the tribunal.
In the course of the hearing Mr Nielsen did seek an adjournment so that he could call a witness he named as Shane Clements who, he alleged, had some involvement with the transaction. The learned Magistrate took some care, the transcript shows, to determine what evidence that witness might give and was not persuaded it would be relevant. Nothing otherwise appearing in the transcript, or in Mr Nielsen’s submissions to the Appeal Tribunal, is persuasive that her decision to refuse an adjournment was wrong. It is also noteworthy that the learned Magistrate did grant Mr Nielsen an adjournment of one hour to enable him to locate his wife and bring her to the hearing to call evidence – as subsequently occurred.
I am unable to identify the unsigned statement which, Mr Nielsen says, he should have been allowed to tender.
Nothing in these circumstances suggests Mr Nielsen was denied a fair hearing, with all the necessary elements of procedural fairness and natural justice.
In her reasons the learned Magistrate concluded that because the bus was not registered and was not “… fit for the purpose for which it was sold” she should impose a remedy that restored the parties, so far as possible, to their original positions. It is said that the finding that the bus was not fit for purpose was itself based upon erroneous findings of fact – namely, that the bus had been out of service for 2.5 years and that Mr Nielsen has offered to repair it, but Ms Ormerod had refused. The learned Magistrate does not, however, make either finding. Her finding that the bus was not fit for purpose is unsurprising in light of the overwhelming evidence she received about its many mechanical faults and defects.
Even if that finding was wrong or not open to her, however, she was entitled to reach her decision and impose the remedy because of the circumstance surrounding the registration of the bus. Mr Nielsen had certainly advertised it as registered until 1 January 2012. His own evidence shows he had only purchased it a few weeks before this transaction from Buslink Pty Ltd for $2,000 and it remained registered in the name of that company. When Ms Ormerod raised problems around its condition and its many faults Mr Nielsen told her to take it to Buslink which she did – whereupon, the company cancelled the registration.
Once that had occurred, Ms Ormerod (and Mr Turner) could not use it and, as Mr Ormerod’s evidence clearly showed, it was either beyond repair or the cost of repairs was prohibitive.
In short, a fundamental term of the contract – that what was being sold was a registered bus, and registered till January 2012 – turned out to be wrong.
The learned Magistrate was obliged to make the orders that she considered fair and equitable to the parties in order to resolve the dispute: QCAT Act 2009, s 13. Although she did not state her conclusion in these terms, it can be seen that she was persuaded that Mr Nielsen’s misrepresentations about the registration and the condition of the bus meant that the contract between the parties should be set aside or, perhaps, because the consideration for it had totally failed. Once she reached that conclusion it was open to her to consider, as an appropriate remedy, either damages referrable to the purchase price or, alternatively, a remedy in the nature of restitution.
Ordinarily a claim for restitution is different and discrete from the remedy under the contract, and the plaintiff is usually required to make an election[2]. In the nature of this jurisdiction, and in light of s 13 of the QCAT Act it was not critical for the learned Magistrate to expound, in her reasons, upon the niceties of these remedies. Rather, it was open to her to make an order which involved either an award of damages to Ms Ormerod reflecting the fact that the consideration for the contract had wholly failed, and measured at a figure which would restore her to her pre-contractual position; or, order restitution. In either event, the result is the same.
[2] Baltic Shipping Co v Dillon (1993) 67 ALJR 228, at 248.
It cannot be said that, in light of the evidence presented to the learned Magistrate, this outcome was unfair or inequitable. The transcript shows she took considerable care to ensure that she understood all of the various aspects of the rather complicated circumstances, and history, of the transaction; to make findings about, and based upon, the evidence (and the weight of that evidence) presented to her; and, to fashion a remedy which reflected her conclusions after considering that evidence.
For these reasons, no error on her part is apparent. The application for leave to appeal must be refused.