Schutz v Tillett - [2012] QCATA 160

CITATION:

Schutz v Tillett [2012] QCATA 160

PARTIES:	Paula Schutz (Applicant/Appellant)
v
Carolina Tillett trading as Price USA (Respondent)

APPLICATION NUMBER:

APL108-12

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Richard Oliver, Senior Member

DELIVERED ON:

23 August 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

Leave to appeal refused.

CATCHWORDS:

Minor Civil Dispute – no error demonstrated

Queensland Civil and Administrative Tribunal Act2009, s 142(3)

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

The respondent carried on business as Price USA. In June 2011 the applicant ordered a product through Price USA, a Honda CRX 88-91 Carbon Fibre Hatch, the product had to be shipped from the United States. It seems when the applicant used an online calculator to calculate the cost of shipping, she made an error and the cost of shipping was much lower than the ultimate actual cost. When final calculations were done, the product was going to cost over $1,000 to be shipped to Australia. In accordance with the terms of agreement, the applicant had a choice then of cancelling the order and having the product sent back to the original supplier however there was a cost to this. The agreement provided that the applicant was to bear this cost. Of the money paid by the applicant to the respondent, the respondent retained $383.00 to cover these costs.

Dissatisfied with the respondent’s retention of this sum, Ms Schutz filed an application in the minor civil disputes jurisdiction of the Tribunal to recover that cost. After a hearing on 28 March 2012 a Tribunal Member dismissed Ms Schutz’s application, he did so because he found there was not a total failure of consideration, the exclusion provisions in the agreement allowed the respondent to retain the cost of return as a result of her entitlement to cancel the order.

From that decision Ms Schutz has filed an application for leave to appeal. Leave, or permission to appeal, is necessary because this is an appeal from the minor civil disputes jurisdiction of the Tribunal.[1] 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?
[1] QCAT Act, s 142(3).

Ms Schutz says in her application, with reference to the right to cancel the order, if she knew the shipping costs were excessive she would not have placed the order. She says the shipping estimate calculator on the Price USA website was misleading or deceptive.

I agree that the cost of shipping of $117.00 compared to $1,076.64 is a significant difference. However, the miscalculation seems to have come about because Ms Schutz did not enter the correct information into the shipping cost calculator. The learned Tribunal Member found this to be the case and then, in reliance on the “exclusion clause” in the agreement found that there was no right to a refund of the return cost.

The email quoting the price to Ms Schutz is quite specific. It says:

“If you are surprised by the shipping cost/weight estimate please remember that international shipping is also based on volume where 139 cubic inches = 1 pound. This means that large items will be expensive to ship. You should not use my service just because the store has told you that it will be expensive to ship your item as my shipping may not be any cheaper. If you know the dimensions of the box your order will ship in you can use the shipping calculator found here type="1">
This, as the learned Member found, put Ms Schutz on notice that the cost of shipping could be substantial. The evidence before the learned Tribunal Member from both parties satisfied him that Ms Schutz was not entitled to a refund of the money paid. That conclusion was open on the evidence before him, and, even though I might come to a different view, there is no error in the approach taken by him. In those circumstances, leave to appeal will be refused.