Tow.Com.Au Pty Ltd v Mark Iain Fuller - [2016] QCAT 398

CITATION:

Tow.Com.Au Pty Ltd v Mark Iain Fuller [2016] QCAT 398

PARTIES:	Tow.Com.Au Pty Ltd (Applicant)
v
Mark Iain Fuller (Respondent)

APPLICATION NUMBER:

MCDO51243-16

MATTER TYPE:	Other minor civil dispute matters
HEARING DATE:	21 July 2016 and 12 August 2016

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Howe

DELIVERED ON:

20 October 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

The respondent pay the applicant the sum of $1,107.57 for claim plus costs of $173.04.

CATCHWORDS:

COURT PRACTICE AND PROCEDURE - QUEENSLAND CIVIL PRACTICE – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL ACT – MINOR CIVIL DISPUTE – MINOR DEBT – decision by default – impounding vehicles – criminal offences – recovery of costs of towing and storage – reasonable costs – strict construction of penal provisions

Police Powers and Responsibilities Act 2000 (Qld), ss 77, 78, 111, 112, 114, 118, 121.
Tow Truck Regulation 2009 (Qld) s 32, Schedule 3.

Spain v Union Steamship Co of New Zealand (1923) 32 CLR 138
Solahart Mackay & Ors v Summers [2013] QCATA 113
Alexander v Ajax Insurance Co Ltd [1956] VLR 436
Craig, Williamson Pty Ltd v Barrowcliff [1915] VLR 450
Begley v Fisigi Pty Ltd [2007] QCA 252
Beckwith v The Queen [1976] HCA 55
Council of the City of Fairfield v Colorpak Products (NSW) Pty Ltd [1988] NSWLEC 97
R v. Johnson [1962] QWN 37

APPEARANCES:

APPLICANT:

Mark Moorhouse and Walter Zamaeta for the Applicant

RESPONDENT:

Mr Mark Iain Fuller appeared on the first day of hearing

REASONS FOR DECISION

The applicant company (Tow.Com) filed an application in the Tribunal seeking recovery of towing and storage fees from Mr Fuller of $3,427.61. In the application, Tow.Com claims the respondent, Mr Fuller, was the owner of a 1999 red Hyundai Excel hatchback motor vehicle registration number 672 EXX which was towed and stored by the applicant after police impounded the vehicle pursuant to s 77 of the Police Powers And Responsibilities Act 2000 (Qld) (the Act).
Mr Fuller did not file a response after being served with the Minor Debt application and Tow.Com applied for a decision in default of response. That was refused and the matter listed for hearing.
The matter came before me for an initial hearing on 21 July 2016, at which time Mr Fuller appeared, and it was then adjourned for further hearing on 12 August 2016, which Mr Fuller failed to attend. Five Tow.Com claims against five different respondents were listed for hearing on the day. All claims had sought recovery of costs of towing and storage of motor vehicles impounded pursuant to s 77 of the Police Powers And Responsibilities Act 2000 (Qld). Tow.Com led evidence and made submissions generally applicable to support the basis of claim in respect of all five matters. Mr Fuller admitted at hearing that this claim involved a third offence and that the car involved was impounded by police, but he denied the vehicle belonged to him.

The Act

By s 74 of the Act, a police officer may impound a motor vehicle for…

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.

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Details

Case: [2016] QCAT 398
Decision Date: 20 October 2016

CaseChat Overview and Summary

Tow.Com.Au Pty Ltd initiated proceedings against Mark Iain Fuller in the Queensland Civil and Administrative Tribunal concerning an unpaid parking debt. The Tribunal was tasked with resolving the dispute over the recovery of costs associated with the impounding and storage of a vehicle due to unpaid fines. The proceedings were initiated by the applicant after the respondent defaulted in payment, leading to the Tribunal’s decision by default. The central issue was whether the applicant's claim for towing and storage costs was permissible under the relevant statutory framework and whether the amount claimed was reasonable.

The Tribunal examined the statutory provisions governing the recovery of costs in minor debt cases and the specific powers of impounding vehicles. It noted the strict interpretation of penal provisions and the requirement for the costs claimed to be reasonable. The Tribunal concluded that the applicant's claim for towing and storage costs was permissible under the Queensland Civil and Administrative Tribunal Act, provided that the costs were reasonable and directly related to the impounding and storage of the vehicle. The Tribunal determined that the amount claimed by the applicant was reasonable and thus upheld the claim for the full amount, along with associated costs.

The Tribunal ordered that the respondent pay the applicant the sum of $1,107.57 for the claim plus additional costs of $173.04. This decision underscores the importance of adhering to statutory provisions and the necessity for any costs claimed in minor debt cases to be both reasonable and directly related to the services provided.

Orders

Orders of the court

The respondent pay the applicant the sum of $1,107.57 for claim plus costs of $173.04.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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