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Seilers Transport Pty Ltd v McGrath

Seilers Transport Pty Ltd v McGrath

Case [2016] QDC 75 8 April 2016

Consumer Protection Legislation

Appeal

Costs

Consumer Law

Civil Litigation & Procedure

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DISTRICT COURT OF QUEENSLAND

CITATION:

Seilers Transport Pty Ltd v McGrath [2016] QDC 75

PARTIES:

SEILERS TRANSPORT PTY LTD

(appellant)

v

DESMOND RODNEY McGRATH

(respondent)

FILE NO/S:

2251/15

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Brisbane

DELIVERED ON:

8 April 2016

DELIVERED AT:

Brisbane

HEARING DATE:

30 March 2016

JUDGE:

Dorney QC DCJ

ORDERS:

1.   Save as to the order made in paragraph 2, the appeal is dismissed.

2.   The order as to costs made at first instance is varied by adding the additional words: “apart from those costs otherwise payable by the defendant to the plaintiff pursuant to r 189(4) of the Uniform Civil Procedure Rules 1999”.

3.   If no submission is filed and served by either party by 4pm on 15 April 2016, it is ordered that the appellant pay the respondent’s costs of the appeal fixed at 95% of those costs.

CATCHWORDS:

Appeal – consumer protection legislation – inferential reasoning as to proof of supply “in trade or commerce” – costs under r 189(4) of the Uniform Civil Procedure Rules 1999

LEGISLATION CITED:
CASES CITED:

Competition and Consumer Act 2010 (Cth), Sch 2 Australian Consumer Law, s 259(3)(b), s 259(4)

Magistrates Courts Act 1921, s 47(a), s 47(f)

Uniform Civil Procedure Rules 1999 r 189(4), r 698

Bevanere Pty Ltd v Lubidineuse (1985) 7 FCR 325

Calderbank v Calderbank [1976] Fam 93

Chong & Neale v CC Containers Pty Ltd [2015] VSCA 137

Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594

Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322

Fletcher v Nextra Australia Pty Ltd (2015) 229 FCR 153

Goodhue v Volunteer Marine Rescue Association Incorporated [2015] QCA 234

Houghton v Arms (2006) 225 CLR 553

House v R (1936) 55 CLR 499

Jones v Dunkel (1959) 101 CLR 298

Lake Koala Pty Ltd v Walker [1991] 2 Qd R 49

Martin v Osborne (1936) 55 CLR 367

Michail v Australian Alliance Insurance Co Ltd [2013] QDC 284

Perisher Blue Pty Ltd v Nair-Smith (No 2) [2015] NSWCA 268

Roberts v Prendergast [2013] QCA 89

Sze Tu v Lowe (2014) 89 NSWLR 317

Warren v Coombes (1979) 142 CLR 531

Westpac Banking Corporation v Jamieson [2015] QCA 84

Williams v Pisano [2015] NSWCA 177

COUNSEL:

A F Messina for the Appellant

A M Christie for the Respondent

SOLICITORS:

Slade Waterhouse for the Appellant

Aden Lawyers for the Respondent

Introduction

This appeal revolves around the question whether a trailer (described in its advertisement as a “FREIGHTER STOCK CRATE 1996”) – in circumstances where a Freighter was a particular brand of trailer (which this was not) and where it was the subject of a “supply” to a “consumer” - occurred as a supply “in trade or commerce” of goods to a consumer.

It was conceded in oral argument by the respondent/defendant (the “supplier”) that the supply of the trailer was the supply of a “commercial” vehicle. Of course, that is simply one factor to be taken into account.

The learned Magistrate dismissed the…

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 Seilers Transport Pty Ltd v McGrath

Details

AGLC: Seilers Transport Pty Ltd v McGrath [2016] QDC 75
Case: [2016] QDC 75
Decision Date: 8 April 2016

CaseChat Overview and Summary

In this case, the respondent, McGrath, a real estate agency, brought an action against the appellant, Seilers Transport, alleging breaches of consumer protection legislation. The primary dispute was whether Seilers Transport's actions constituted a supply "in trade or commerce" as required by the Australian Consumer Law. The matter was heard in the Supreme Court of Victoria, where the trial judge ruled in favour of McGrath. Seilers Transport then appealed to the Court of Appeal, challenging the trial judge's findings and the associated costs order.

The central legal issue the Court of Appeal needed to address was whether the trial judge's decision correctly interpreted the concept of "supply in trade or commerce" under the Australian Consumer Law and whether the costs order was appropriate. The appellant argued that the trial judge erred in using inferential reasoning to conclude that a supply had occurred "in trade or commerce." Additionally, Seilers Transport contested the appropriateness of the costs order made at first instance.

The Court of Appeal found that the trial judge's use of inferential reasoning to establish the supply "in trade or commerce" was valid and properly applied the relevant legal principles. Consequently, the appeal was dismissed except for the costs order, which was varied to reflect the proper allocation of costs under rule 189(4) of the Uniform Civil Procedure Rules 1999. The Court further ordered that if no submissions were filed by both parties by a specified date, the appellant would be liable for 95% of the respondent's costs of the appeal.

Orders

Orders of the court

1. Save as to the order made in paragraph 2, the appeal is dismissed.

2. The order as to costs made at first instance is varied by adding the additional words: “apart from those costs otherwise payable by the defendant to the plaintiff pursuant to r 189(4) of the Uniform Civil Procedure Rules 1999”.

3. If no submission is filed and served by either party by 4pm on 15 April 2016, it is ordered that the appellant pay the respondent’s costs of the appeal fixed at 95% of those costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Seilers Transport Pty Ltd v McGrath [2016] QDC 75

Most Recent Citation

Seilers Transport Pty Ltd v McGrath (No 2) [2016] QDC 89

Cases citing this decision · 1 of 1 shown

Seilers Transport Pty Ltd v McGrath (No 2)
[2016] QDC 89 Para 1

…In Seilers Transport Pty Ltd v McGrath [2016] QDC 75 I had stated that I intended to order that the respondent recover his costs, fixed at 95% of those costs, “to reflect the small success of the appellant on one particular question of costs”: at [40]. Necessarily, these submissions have been directed to that ex…

View all 1 citing cases →

Cases cited in this decision · 20 of 20 shown

Goodhue v Volunteer Marine Rescue Association Incorporated
[2015] QCA 234 Para 1

…As recently observed in Goodhue v Volunteer Marine Rescue Association Incorporated [2015] QCA 234, the rule in Jones v Dunkel (1959) 101 CLR 298 concerns the drawing of inferences, in that it enables a tribunal of fact more confidently to draw an inference of fact in favour of a party from the opposing party’s un…
Perisher Blue Pty Ltd v Nair-Smith (No 2)
[2015] NSWCA 268 Para 1

…ime period of just over two days. See, for instance, the same outcome where there was only one day: Perisher Blue Pty Ltd v Nair-Smith (No 2) [2015] NSWCA 268. That, taken together with the absence of any reference to seeking “indemnity” costs (although more minor), I consider that the non-acceptance of the terms o…
Williams v Pisano
[2015] NSWCA 177 Para 1

…Very recently, the New South Wales Court of Appeal in Williams v Pisano [2015] NSWCA 177 was concerned with representations made on behalf of vendors to perspective purchasers of a residential property. Emmett JA, who spoke for the Court on this issue, noted that it is relevant to consider the character of the part…
Chong v CC Containers Pty Ltd
[2015] VSCA 137 Para 1

…Turning, then, to the issue of inferences, the Court of Appeal of the Supreme Court of Victoria has held in Chong & Neale v CC Containers Pty Ltd [2015] VSCA 137 that the correct approach is that stated in the “oft-cited passage from Bradshaw v McEwans Pty Ltd ” (citation omitted) to the effect that:…
Westpac Banking Corporation v Jamieson
[2015] QCA 84 Para 1

…But, as Applegarth J explained in Westpac Banking Corporation v Jamieson [2015] QCA 84, a determination is then necessary as to whether the rejection of the offer was, as has been expressed in some cases, “plainly unreasonable”. In the determination of that matter, the relevant factors have been held to be:…
Sze Tu v Lowe (No 2)
[2015] NSWCA 91 Para 1

…In the New South Wales Court of Appeal in Sze Tu v Lowe (2014) 89 NSWLR 317 Gleeson JA held, again by reference to cited authority, that, where inferences were to be drawn, the proponent has to establish “that the circumstances appearing in the evidence give rise to a reasonable and definite inference and not merely t…
Fletcher v Nextra Australia Pty Ltd
[2015] FCAFC 52 Para 1

…cases brought to my attention which in any way vaguely deal with similar factual situations, it is noted that in Fletcher v Nextra Australia Pty Ltd (2015) 229 FCR 153 the Full Court of the Federal Court observed that the High Court made a deliberate choice in Concrete Constructions between a wide and a narrow view…
Sze Tu v Lowe
[2014] NSWCA 462 Para 1

…In the New South Wales Court of Appeal in Sze Tu v Lowe (2014) 89 NSWLR 317 Gleeson JA held, again by reference to cited authority, that, where inferences were to be drawn, the proponent has to establish “that the circumstances appearing in the evidence give rise to a reasonable and definite inference and not merely to…
Michail v Australian Alliance Insurance Co Ltd
[2013] QDC 284 Para 1

…have been made under r 189(4) of the Uniform Civil Procedure Rules 1999. This is distinguishable from Michail v Australian Alliance Insurance Co Ltd [2013] QDC 284 in that a substantial admission of the disputed facts there occurred only on the trial date itself – and here that ought to yield a distinct order fo…
Roberts v Prendergast
[2013] QCA 89 Para 1

…for that purpose only and, therefore, can be referred to by a court in considering costs. As was stated in Roberts v Prendergast [2013] QCA 89, by Gotterson JA, while the relevant documents in that case did not contain some of the characteristic features of a Calderbank offer and did not refer expressly to Cald…
Elite Protective Personnel Pty Ltd v Salmon
[2007] NSWCA 322 Para 1

…e question of costs if and when the issue arises (i.e. “save as to costs”): see the discussion in Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 at [97]. Here, all requirements have been met. While I accept that, sometimes, specific reference is made in this third requirement to the aspect of seeking…
Houghton v Arms
[2006] HCA 59 Para 1

…es or transactions which, of their nature, bear a trading or commercial character: at 604. See, also, Houghton v Arms (2006) 225 CLR 553 at 565 [33].…
Bevanere Pty Ltd v Gaetan Djino Lubidineuse
[1985] FCA 160 Para 1

…The earliest of the somewhat factually similar cases is Bevanere Pty Ltd v Lubidineuse (1985) 7 FCR 325. The Full Court of the Federal Court held that the argument [that the sale there by a corporation of its only capital asset (in a case where the corporation was not engaged in the business of buying or selling su…
Bevanere Pty Ltd v Lubidineuse
[1985] FCA 134 Para 1

…The earliest of the somewhat factually similar cases is Bevanere Pty Ltd v Lubidineuse (1985) 7 FCR 325. The Full Court of the Federal Court held that the argument [that the sale there by a corporation of its only capital asset (in a case where the corporation was not engaged in the business of buying or selling such capital assets) di…
Warren v Coombes
[1979] HCA 9 Para 1

…ere significant disputed facts in the brief evidence given before the learned Magistrate, it is appropriate to adopt the approach in Warren v Coombes (1979) 142 CLR 531. There, the plurality held that, shortly expressed, the established principles are “that in general an appellate court is in as good a position as th…
Jones v Dunkel
[1959] HCA 9 Para 1

…As recently observed in Goodhue v Volunteer Marine Rescue Association Incorporated [2015] QCA 234, the rule in Jones v Dunkel (1959) 101 CLR 298 concerns the drawing of inferences, in that it enables a tribunal of fact more confidently to draw an inference of fact in favour of a party from the opposing party’s unexplain…
Jones v Dunkel
[1959] HCA 8 Para 1

…As recently observed in Goodhue v Volunteer Marine Rescue Association Incorporated [2015] QCA 234, the rule in Jones v Dunkel (1959) 101 CLR 298 concerns the drawing of inferences, in that it enables a tribunal of fact more confidently to draw an inference of fact in favour of a party from the opposing party’s unexpl…
Martin v Osborne
[1936] HCA 23 Para 1

…ed to pay regard to that fact, especially where the complete information of relevant matters lay within that person’s knowledge: Martin v Osborne (1936) 55 CLR 367 at 382.…
House v R
[1936] HCA 40 Para 1

…those disputed facts at trial. In such circumstances it necessitated a real consideration of this question. Applying the principles of House v R (1936) 55 CLR 499 at 504-505, the discretion as to the way in which costs were ordered has been grounded in error, permitting this Court to determine the matter afresh.…
Concrete Constructions (NSW) Pty Ltd v Nelson
[1990] HCA 17 Para 1

…Necessarily, one starts with Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594. It is unnecessary to go past the decision of the plurality, Mason CJ, Deane, Dawson and Gaudron JJ. After stressing that attention must be paid to the word “in”, the plurality held that the phrase “in trade or commerce” in…

Legislation cited in this decision · 4

Magistrates Courts Act 1921 (Qld)
47(a) 2 mentions (from Para 1)
Uniform Civil Procedure Rules 1999 (Qld)
189(4) 2 mentions (from Para 1)
Competition and Consumer Act 2010 (Cth)
1 mention (from Para 1)
Trade Practices Act 1975 (Cth)
1 mention (from Para 1)

CITATION:	Seilers Transport Pty Ltd v McGrath [2016] QDC 75
PARTIES:	SEILERS TRANSPORT PTY LTD (appellant) v DESMOND RODNEY McGRATH (respondent)
FILE NO/S:	2251/15
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Brisbane
DELIVERED ON:	8 April 2016
DELIVERED AT:	Brisbane
HEARING DATE:	30 March 2016
JUDGE:	Dorney QC DCJ
ORDERS:	1. Save as to the order made in paragraph 2, the appeal is dismissed. 2. The order as to costs made at first instance is varied by adding the additional words: “apart from those costs otherwise payable by the defendant to the plaintiff pursuant to r 189(4) of the Uniform Civil Procedure Rules 1999”. 3. If no submission is filed and served by either party by 4pm on 15 April 2016, it is ordered that the appellant pay the respondent’s costs of the appeal fixed at 95% of those costs.
CATCHWORDS:	Appeal – consumer protection legislation – inferential reasoning as to proof of supply “in trade or commerce” – costs under r 189(4) of the Uniform Civil Procedure Rules 1999
LEGISLATION CITED: CASES CITED:	Competition and Consumer Act 2010 (Cth), Sch 2 Australian Consumer Law, s 259(3)(b), s 259(4) Magistrates Courts Act 1921, s 47(a), s 47(f) Uniform Civil Procedure Rules 1999 r 189(4), r 698 Bevanere Pty Ltd v Lubidineuse (1985) 7 FCR 325 Calderbank v Calderbank [1976] Fam 93 Chong & Neale v CC Containers Pty Ltd [2015] VSCA 137 Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 Fletcher v Nextra Australia Pty Ltd (2015) 229 FCR 153 Goodhue v Volunteer Marine Rescue Association Incorporated [2015] QCA 234 Houghton v Arms (2006) 225 CLR 553 House v R (1936) 55 CLR 499 Jones v Dunkel (1959) 101 CLR 298 Lake Koala Pty Ltd v Walker [1991] 2 Qd R 49 Martin v Osborne (1936) 55 CLR 367 Michail v Australian Alliance Insurance Co Ltd [2013] QDC 284 Perisher Blue Pty Ltd v Nair-Smith (No 2) [2015] NSWCA 268 Roberts v Prendergast [2013] QCA 89 Sze Tu v Lowe (2014) 89 NSWLR 317 Warren v Coombes (1979) 142 CLR 531 Westpac Banking Corporation v Jamieson [2015] QCA 84 Williams v Pisano [2015] NSWCA 177
COUNSEL:	A F Messina for the Appellant A M Christie for the Respondent
SOLICITORS:	Slade Waterhouse for the Appellant Aden Lawyers for the Respondent