Spraychief Industries Pty Ltd v Lewis Roofing Pty Ltd
[2011] QCATA 84
•31 March 2011
| CITATION: | Spraychief Industries Pty Ltd v Lewis Roofing Pty Ltd and Anor [2011] QCATA 084 |
| PARTIES: | Spraychief Industries Pty Ltd (Appellant) |
| v | |
| Lewis Roofing Pty Ltd and KWR Roofing Pty Ltd (Respondents) |
APPLICATION NUMBER: APL369-10
| MATTER TYPE: | Appeals |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Richard Oliver, Senior Member Peta Stilgoe, Member |
DELIVERED ON: 31 March 2011
DELIVERED AT: Brisbane
ORDERS MADE: Leave to appeal dismissed.
| CATCHWORDS: | MINOR CIVIL DISPUTES – TRADER DISPUTE – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Senior Member Richard Oliver:
In this matter the Appeal Tribunal consisted of Ms Stilgoe, QCAT Member and me. I have had the benefit of reading her reasons in draft. I agree with her reasons, and her conclusions, and the order she proposes.
Member Peta Stilgoe:
Lewis Roofing and KWR Roofing (“the roofers”) each bought a water blaster from Nutech Paints Pty Ltd. The blasters were supplied to Nutech by Spraychief Industries Pty Ltd. The roofers claimed that the water blasters were not performing to the standard claimed by the manufacturer and sought a full refund of the purchase price.
The roofers’ claims were heard together on 3 December 2010. At the conclusion of the hearing, in each case, the learned Adjudicator ordered (as I interpret them) that Spraychief pay the roofer $4,290.00, Nutech pay Spraychief $3,217.50 and Spraychief return the blaster to Nutech within 14 days. Spraychief has sought leave to appeal these decisions on the basis that:
a) The orders appear to be incorrect. Spraychief is required to refund money without receiving the blasters back.
b) The orders are confusing about who is the first and second respondent.
I understand Spraychief’s confusion with the orders. I read the transcript carefully in an effort to untangle what occurred at the conclusion of the hearing. I suspect the real intention of the learned Adjudicator was that Spraychief pay the roofers $4,290.00, Nutech pay Spraychief $3,217.50 and Nutech return the blasters to Spraychief within 14 days. That error is one that can be corrected by the tribunal under s 135(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009: a material mistake in the description of a matter, person or thing mentioned in the decision. In any event, as Spraychief now has possession of the blasters, it seems that nothing turns on the error in the orders.
Spraychief has now received the blasters back and, contrary to the evidence led at the hearing, they are not “as new”, they have been modified and are not in a condition that justifies a full refund of the purchase price.
Sections 137 and 138 of the QCAT Act gives the tribunal power to reopen a proceeding if a party would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen and the evidence was not reasonably available when the proceeding was first heard and decided.
The transcript shows that the learned Adjudicator was attempting to broker a resolution of the proceedings.[1]
[1] Transcript page 44, line 3; page 61, line 11; page 63, line 46.
The “deal” that found its way into orders of the tribunal was, at least in Spraychief’s submission, predicated on the assumption that the blasters were in “as new” condition.[2] It is clear that Spraychief did not agree to the learned Adjudicator’s order. It is also clear, however, that the learned Adjudicator made a specific finding that the blasters were faulty and were not operating in accordance with representations made to the roofers. The learned Adjudicator also noted that Spraychief had inspected the blasters on two occasions since purchase so it had an opportunity to form a view about their condition.
[2] Transcript page 43, lines 41, 44.
It is also clear that the learned Adjudicator balanced the possibility that the blasters would not be returned in an “as new” condition against the roofers’ loss of income in not being able to use the blasters.
I do not accept that Spraychief could not reasonably have known the condition of the blasters at the time of the hearing. It knew that Nutech held the blasters, it knew that the roofers claimed there were problems and it could have arranged for an inspection. This is not a matter in which it is appropriate to reopen the proceedings because of fresh evidence.
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 reasonable prospect of 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?
There is no suggestion that the issues canvassed in this appeal are matters of public importance. Although the application for leave to appeal asserts that the orders are not fair and equitable, Spraychief has not pointed to anything that will result in a substantial injustice being visited upon it. It is a company engaged in commerce and the payment of money as a result of a consumer’s dissatisfaction is just one of many business risks it faces.
Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it[3]. The minor civil dispute jurisdiction is a busy one. Adjudicators who sit in it are required to make decisions quickly and often balance the competing interests of the parties to achieve a result. Although the conduct of these proceedings was unorthodox, there is no finding of the learned Adjudicator that cannot be reasonably supported by the evidence.
[3]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 197 ALR 201 at 207, 208
Leave to appeal should be dismissed.
2
0