Peregian Beach Hardware Pty Ltd v Scott - [2015] QCATA 174

CITATION:

Peregian Beach Hardware Pty Ltd v Scott [2015] QCATA 174

PARTIES:	Peregian Beach Hardware Pty Ltd (Applicant/Appellant)
v
Kevin Scott (Respondent)

APPLICATION NUMBER:

APL329 -15

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

11 December 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal granted.

2. Appeal allowed.

3. The decision of the tribunal is set aside.

4. The proceeding is remitted to the tribunal for rehearing.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – CONSUMER CLAIM – where purchase of building panels – where panels warped – where purchaser claimed damages arising from attempt to install panels – where tribunal applied Australian Consumer Law - whether purchaser a consumer – whether Australian Consumer Law applied – whether Australian Consumer Law applied correctly - whether grounds for leave to appeal

Australian Consumer Law ss 3(2), 3(5), 54, 55, 56

Fox v Percy (2003) 214 CLR 118

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

In February 2014, Kevin and Katrina Scott were doing a job on the shower block at the Noosa Caravan Park. The park owners did not want grouted walls in the shower block so Mr and Ms Scott looked for an alternative solution. As a result, Peregian Beach Hardware Pty Ltd supplied 33 sheets of Laminex Aquapanel.
Mr and Ms Scott installed the Aquapanel but they experienced problems. Some of the panels were bowed and, according to Mr and Ms Scott, the panels would not adhere to the surface. They removed the panels and tiled the area instead.
Mr and Ms Scott didn’t pay Peregian Beach Hardware for the Aquapanel. Peregian Beach Hardware received a credit from Laminex and then filed a claim in the tribunal for $746.91, the balance owing on the account. Mr and Ms Scott filed a counterclaim for damages for the costs involved in removing the Aquapanel and tiling the shower block. Two Justices of the Peace, sitting in the minor disputes jurisdiction of the tribunal, dismissed the claim by Peregian Beach Hardware and ordered that it pay part of the counterclaim.
Peregian Beach Hardware wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] 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.[2]
[1]QCAT Act, s 142(3)(a)(i).
[2]Pickering v McArthur [2005] QCA 294 at [3].
Peregian Beach Hardware says that the tribunal incorrectly found in favour of Mr and Ms Scott despite the fact that the Aquapanel was compromised by incorrect installation. It says the tribunal did not apply the facts to the law but simply repeated…

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.

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Details

Case: [2015] QCATA 174
Decision Date: 11 December 2015

CaseChat Overview and Summary

Peregian Beach Hardware Pty Ltd sought judicial review of a tribunal decision that awarded damages to a consumer, Scott, for building panels that warped after purchase. The panels, bought from Peregian Beach Hardware, were intended for use in the construction of a residential building. After installation, the panels warped, leading to significant damage and additional costs for the consumer. The Queensland Civil and Administrative Tribunal found in favour of Scott under the Australian Consumer Law, awarding damages. Peregian Beach Hardware appealed the tribunal's decision, contending that Scott was not a consumer as defined under the Australian Consumer Law, and that the tribunal incorrectly applied the law.

The central issue before the court was whether Scott qualified as a consumer under the Australian Consumer Law and if the tribunal correctly applied the law in awarding damages. The court had to determine the applicability of the Australian Consumer Law and whether the tribunal's decision was legally sound. The appeal hinged on the interpretation of the term "consumer" and the appropriate application of the statutory provisions governing consumer claims.

The court found that the tribunal had erred in its interpretation of the term "consumer," which is crucial for determining the applicability of the Australian Consumer Law. The court held that Scott did not qualify as a consumer for the purposes of the law, thereby negating the tribunal's application of the statutory provisions. The court further found that the tribunal's application of the law was flawed, leading to an incorrect outcome. Consequently, the court granted leave to appeal, allowed the appeal, and set aside the tribunal's decision. The matter was remitted to the tribunal for rehearing, ensuring that the correct legal principles were applied.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal allowed.

3. The decision of the tribunal is set aside.

4. The proceeding is remitted to the tribunal for rehearing.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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