Starvesta Pty Ltd t/as Top Gun Car Sales Cairns v Gibbens
[2023] QCATA 65
•7 June 2023
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Starvesta Pty Ltd t/as Top Gun Car Sales Cairns v Gibbens [2023] QCATA 65
PARTIES:
STARVESTA PTY LTD T/AS TOP GUN CAR SALES CAIRNS (applicant)
v
MARGARET JOAN GIBBENS (respondent)
APPLICATION NO/S:
APL021-22
ORIGINATING APPLICATION NO/S:
MVL016-21
MATTER TYPE:
Appeals
DELIVERED ON:
7 June 2023
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member WA Isdale
ORDERS:
Application dismissed.
CATCHWORDS:
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where an application was made disputing a sale of a motor vehicle – where the condition of the motor vehicle was in question – where the Adjudicator found in favour of the respondent on the papers – where the applicant seeks leave to appeal because they were unsure of the reasons – where disagreement with a decision is not a ground for appeal
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142
Pickering v McArthur [2005] QCA 294
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
This is an application for leave to appeal against a decision of an Adjudicator. The Queensland Civil and Administrative Tribunal Act 2009 (“the Act”) provides that this dispute is a minor civil dispute. Section 142(3)(a)(i) of the Act requires that leave is required to appeal in this case.
In the usual course, leave will be granted where it appears that there is a reasonable argument that the decision is infected by error and that an appeal is necessary in order to correct a substantial injustice to the appellant which was caused by that error.[1]
[1]Pickering v McArthur [2005] QCA 294 at [3].
The grounds of appeal provided by the applicant are to the effect that it is not sure of the exact reason for the decision sought to be appealed. It has provided a recital of what it says are the facts of the case.[2]
[2] ‘Application for leave to appeal or appeal’, attachment to application.
In its submissions, provided in response to those of the respondent, the applicant makes clear that:
“the main reason for the appeal is that we believe that there were no issues with the car to fix and we were trying to find the actual issues.”[3]
[3] ‘Response to the application to dismiss or strike out a proceeding’, page 3, para 17.
This can be understood in the light of the reasons for decision given by the Adjudicator on 30 November 2021, where the facts as found are set out.
Briefly, the respondent bought a car from the applicant on 15 October 2020. The respondent provided two affidavits that were before the Adjudicator. The applicant did not respond to the claim made, nor did it provide any material for the Adjudicator to consider. The Adjudicator accordingly proceeded on the basis of what was available and set out the history of the matter as disclosed by the uncontradicted material at hand.
The Adjudicator set out the facts in detail and described the defects in the vehicle as disclosed by the uncontradicted material. The Adjudicator stated that having “carefully scrutinised” the material, in particular the two RACQ vehicle inspection reports, it had been established that the vehicle was not fit for purpose and was defective, unsafe, and not durable at the point of sale.[4]
[4] T1-3, 44 – T1-4, 1.
The Adjudicator found that it was an “inescapable conclusion” that the defects amounted to a “major failure”.[5]
[5] T1-4, 4.
The Adjudicator was satisfied that the respondent was entitled under the Australian Consumer Law to reject the vehicle and to recover the reasonably foreseeable losses that were incurred.
Accordingly, the present applicant was ordered to pay the present respondent $8,197.83 within 28 days of 30 November 2021.
The ground of appeal that the applicant is “not sure of the exact reason” is not able to be sustained in view of the clear findings of the Adjudicator.
The balance of the applicant’s submissions are only argumentative, not disclosing a ground for leave to appeal but simply expressing disagreement with the respondent’s submissions.
The submissions for the respondent dispute the applicant’s version of the facts contained in the application for leave to appeal.
It is unnecessary to further address the facts in dispute for present purposes. The chosen basis of the appeal, that the applicant is not sure of the reason for the decision, is not able to be maintained in the face of the clear and specific reasons for the decision given on 30 November 2021 and recorded in the transcript.
On the material provided, there is no basis established upon which the leave sought could be granted. The application must be dismissed.
Order
Application dismissed.
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