T-Zone Pro Retail Pty Ltd v Olive & Brackstone
[2021] QCATA 72
•16 June 2021
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
T-Zone Pro Retail Pty Ltd v Olive & Brackstone [2021] QCATA 72
PARTIES: T-ZONE PRO RETAIL PTY LTD ATF T-ZONE PRO RETAIL TRUST T/AS CARDIOTECH (appellant)
v
JOY OLIVE
NICK BRACKSTONE(respondents)
APPLICATION NO/S:
APL264-20
ORIGINATING APPLICATION NO/S:
MCDO06/20 (Beenleigh)
MATTER TYPE:
Appeals
DELIVERED ON:
16 June 2021
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member Gordon
ORDERS:
Leave to appeal is refused. This means that the appeal fails.
CATCHWORDS:
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN NO APPEAL LIES – where massage chair failed after 13 months and was not repaired to working order – where suppliers claimed purchasers had not provided a rodent free environment for the chair – where chair was found not to be fit for the purpose for which it was supplied – whether any reasonably arguable grounds of appeal
Australian Consumer Law s 55, s 263
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondents:
Self-represented
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
The respondents, Joy Olive and Nick Brackstone, purchased a massage chair from the appellant, T-Zone Pro Retail Pty Ltd atf T-Zone Pro Retail Trust t/as CardioTech. In a hearing in the tribunal, an Adjudicator decided that the chair was not fit for the purpose for which it was supplied and ordered CardioTech to refund the purchase price of the chair to the purchasers and that upon that payment having cleared, CardioTech could recover back the chair.
CardioTech now appeal against that decision.
The grounds of appeal repeat CardioTech’s defence at the hearing before the Adjudicator. That defence was that since the chair worked for 13 months, it was fit for the purpose. When admittedly after that time the chair developed defects, this was because rodents had accessed the workings of the chair and had damaged them. It was said that the purchasers had moved to a smaller house and did not have room for the chair anymore. So they decided to dispose of the chair back to the suppliers by bringing the tribunal claim.
The Adjudicator rejected these arguments. Noting that it was an expensive chair, costing some $4,000, it should have worked properly for more than 13 months. There were five engineer’s visits to repair it but very soon after each visit the chair failed again. On the final visit there was evidence of mice infestation and because of that CardioTech refused to do any more repair work. The Adjudicator found that for a chair of this price and purported quality it should have been more effectively sealed against rodents. On that basis the Adjudicator found that the chair was not fit for the purpose for which it was supplied,[1] and that this was a major failure entitling the purchaser to a refund.[2]
[1]Contrary to the guarantee to that effect in section 55 of the Australian Consumer Law.
[2]Section 263 of the Australian Consumer Law.
The Adjudicator also considered that it had not been unreasonable for the purchasers to refuse CardioTech’s offer of a replacement chair, because that had been used as a display chair and only carried the balance of the four year warranty which had been paid for by the purchasers when purchasing their chair.
In this appeal, CardioTech were directed to identify the error made by the Adjudicator but all that is said, apart from simply repeating the original defence to the claim, is that the Adjudicator did not consider the full situation and cited inapplicable reasoning. There is no explanation of what is meant by this.
It was clearly open to the Adjudicator to resolve the issues in the way in which this was done. An appeal does not give an unsuccessful party a chance to obtain a second opinion from the Appeal Tribunal on the same points as were before the Adjudicator. There is nothing in the appeal material showing that the Adjudicator reached findings of fact which were not open on the evidence or applied an incorrect legal principle.
Leave to appeal can only be granted if there is an arguable ground of appeal. Here the documents filed in respect of the appeal disclose no such arguable ground, so leave to appeal is refused. This means that the appeal fails.
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