Shepherd v Monsour - [2022] QCATA 78

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Shepherd v Monsour [2022] QCATA 78

PARTIES:

HOWARD PAUL SHEPHERD T/A NUWAY SOLAR

(applicant)

v

MICHAEL MONSOUR

(respondent)

APPLICATION NO:

APL072-21

ORIGINATING APPLICATION NO/S:

MCDO332-19

MATTER TYPE:

Appeals

DELIVERED ON:

17 June 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Lumb

ORDERS:

1. Application to adduce further evidence is refused.

2. Leave to appeal is refused.

CATCHWORDS:

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – GUARANTEES, CONDITIONS AND WARRANTIES IN CONSUMER TRANSACTIONS – where applicant supplied and installed a solar system at a residential property for the respondent – where Tribunal found that solar inverter was not fit for purpose – where Tribunal ordered refund of value of inverter – where applicant alleged bias and denial of opportunity to be heard – where applicant sought to adduce further evidence on the application for leave to appeal

Australian Consumer Law, s 61
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 137, s 142, s 143, s 146, s 147

Berry v Treasure & Anor [2021] QCATA 61

Charisteas v Charisteas (2021) 393 ALR 389, (2021) 64 Fam LR 94, [2021] HCA 29

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Ericson v Queensland Building Services Authority [2013] QCA 391

Kerr v Paku and Anor [2011] QCATA 157

Mannix v Chris Neale Constructions Pty Ltd [2011] QCATA 222

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (2019) 2 QR 271

Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98

Saxer v Hume [2022] QCATA 25

Sutton & Ors v Tomkins [2017] QCATA 44
Underwood v Queensland Department of Communities (State of Queensland) [2013] 1 Qd R 252

APPEARANCES & REPRESENTATION:

Applicant/Appellant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

Introduction

By an Application for leave to appeal or appeal filed on 16 March 2021 (the Appeal Application), the Applicant seeks leave to appeal against a decision made by the Queensland Civil and Administrative Tribunal (the Tribunal) on 10 February 2021 (the Decision).[1]
[1]The Applicant applied for reasons for the Decision on 24 February 2021. No formal written reasons were provided but the Applicant appears to have been provided with a copy of the Transcript of the hearing on 3 March 2021. Given that the Transcript recorded the Adjudicator’s Reasons, I will treat the date of provision of the Transcript as the “relevant day” for the purposes of s 143(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act).
The Decision was made in a proceeding commenced by the Respondent to this application by an Application for minor civil dispute – consumer dispute filed on 25 February 2019 (the MCD Application).
By the MCD Application, the Respondent claimed an amount of $3,500.00 together with payment of the filing fee of $120.50. The Applicant was the only respondent to the MCD Application.
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 Shepherd v Monsour

Details

AGLC: Shepherd v Monsour [2022] QCATA 78
Case: [2022] QCATA 78
Decision Date: 17 June 2022

CaseChat Overview and Summary

The case of Shepherd v Monsour was heard by the Supreme Court of Queensland, with the applicant, Shepherd, appealing a decision made by the Queensland Civil and Administrative Tribunal (QCAT). The primary dispute arose from a transaction where Shepherd supplied and installed a solar system at a residential property owned by the respondent, Monsour. The Tribunal found that the solar inverter installed by Shepherd was not fit for purpose, resulting in a refund order for the value of the inverter. Shepherd argued that the Tribunal was biased and denied them a fair opportunity to be heard, and sought to introduce further evidence during the application for leave to appeal.

The central legal issues before the court were whether the Tribunal's decision was flawed due to alleged bias and denial of procedural fairness, and whether the applicant was entitled to present additional evidence on the application for leave to appeal. The court had to assess the merits of Shepherd's claims of bias and procedural unfairness and determine the appropriateness of admitting new evidence in the context of the appeal process.

In its decision, the Supreme Court found that the Tribunal had not erred in its handling of the case. The court examined the grounds for alleged bias and procedural unfairness but concluded that the Tribunal had followed proper procedures and made its decision based on the evidence presented. Additionally, the court ruled that allowing new evidence at the leave to appeal stage would undermine the finality of the Tribunal's decision and was not in the interests of justice. Consequently, the application for leave to appeal was dismissed, and the refusal to adduce further evidence was upheld.

The final orders of the court were that the application to adduce further evidence was refused, and the leave to appeal was also refused. This decision upheld the Tribunal's original ruling and maintained the integrity of its process.

Orders

Orders of the court

1. Application to adduce further evidence is refused.

2. Leave to appeal is refused.

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

Full text does not contain this section.

CITATION:	Shepherd v Monsour [2022] QCATA 78
PARTIES:	HOWARD PAUL SHEPHERD T/A NUWAY SOLAR (applicant)
v
MICHAEL MONSOUR (respondent)
APPLICATION NO:	APL072-21
ORIGINATING APPLICATION NO/S:	MCDO332-19
MATTER TYPE:	Appeals
DELIVERED ON:	17 June 2022
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Member Lumb
ORDERS:	1. Application to adduce further evidence is refused. 2. Leave to appeal is refused.
CATCHWORDS:	TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – GUARANTEES, CONDITIONS AND WARRANTIES IN CONSUMER TRANSACTIONS – where applicant supplied and installed a solar system at a residential property for the respondent – where Tribunal found that solar inverter was not fit for purpose – where Tribunal ordered refund of value of inverter – where applicant alleged bias and denial of opportunity to be heard – where applicant sought to adduce further evidence on the application for leave to appeal Australian Consumer Law, s 61 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 137, s 142, s 143, s 146, s 147 Berry v Treasure & Anor [2021] QCATA 61 Charisteas v Charisteas (2021) 393 ALR 389, (2021) 64 Fam LR 94, [2021] HCA 29 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Ericson v Queensland Building Services Authority [2013] QCA 391 Kerr v Paku and Anor [2011] QCATA 157 Mannix v Chris Neale Constructions Pty Ltd [2011] QCATA 222 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (2019) 2 QR 271 Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 Saxer v Hume [2022] QCATA 25 Sutton & Ors v Tomkins [2017] QCATA 44 Underwood v Queensland Department of Communities (State of Queensland) [2013] 1 Qd R 252
APPEARANCES & REPRESENTATION:
Applicant/Appellant:	Self-represented
Respondent:	Self-represented