Turner v Simply Spas Pty Ltd
[2014] QCATA 268
•16 September 2014
| CITATION: | Turner v Simply Spas Pty Ltd [2014] QCATA 268 |
| PARTIES: | Tracey Turner (Applicant) |
| v | |
| Simply Spas Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL296-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Acting Senior Member Paratz |
| DELIVERED ON: | 16 September 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – whether grounds for leave to appeal – where an oral contract to purchase a sauna – where no evidence of coercion – where a deposit was retained by a seller Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142 Dearman v Dearman (1908) 7 CLR 549 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Ms Turner agreed to buy a sauna from Simply Spas Pty Ltd (Spas) for $5,295 on 15 April 2014, and paid a deposit of $500.00. Her plans then changed and she wanted to cancel the order and have her deposit refunded.
Spas refused to refund the deposit. Ms Turner filed an application in the Tribunal at Southport on 2 May 2014 seeking refund of the amount of $500.00. The application was heard by the Tribunal, comprised of two Justices of the Peace on 4 June 2014, and the application was dismissed.
Ms Turner filed an Application for leave to Appeal or Appeal on 7 July 2014. Directions were made as to submissions on 14 July 2014, and as to a hearing on the papers. Submissions were received from both parties. This is the decision on the papers.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually only be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
[1]QCAT Act s 142(3)(a)(i).
[2]Pickering v McArthur [2005] QCA 294 at [3].
Ms Turner entered into an oral contract over the telephone with Spas. That oral contract must have had basic provisions as to the goods and payment.
She was apparently later emailed the front page of a tax invoice from Spas. It provided for the payments of the deposit and the balance. It has noted on it that:
I have read the Purchase Details and agree to Client Obligations and Terms & Conditions of Sale as specified on the reverse of this page.
She submits that as the reverse of the page was not attached, that she was not given all the relevant information and cannot be expected to proceed with the sale.
The matter is governed by contract law. A clear contract exists between the parties. Spas were at all times ready, willing and able to comply with the Contract. Ms Turner has breached the contract by failing to proceed with it.
By proceeding to pay the deposit, Ms Turner has by her action confirmed the oral contract.
It may be argued that the parties have implied the usual terms of dealing with Spas into the oral contract, and have accepted their standard Terms and Conditions.
Mr Meikle from Spas says in his submissions on Appeal that the sauna was purchased by Spas after the contract was agreed, and that it had to be resold about 3 months later with a price reduction of $300.00. He says that the total cost to his business was $1,225.00, allowing for the price reduction and other storage and administration fees.
The deposit was part-payment of the total purchase price. Neither party has referred to any provision of the oral contract or the Terms and Conditions of Sale (if they apply) that provided specifically as to treatment of the deposit, as to whether it is non-refundable in any circumstances, or whether it represents an agreed pre-assessment of liquidated damages, or otherwise.
The buyer having breached the Contract, the seller is entitled to mitigate its loss and claim for damages. Spas did not raise any counter-application in the proceedings. If it did, there is a suggestion that it would be entitled to damages greater than $500.00.
The deposit represented about 10% of the purchase price. That is a common level of deposit which is often adopted. That figure represents a sufficient amount to commit the purchaser to the contract, but not such a high amount as may be seen as a penalty if sought to be enforced as damages.
There is no material to suggest that the buyer has suffered an injustice by the seller retaining the deposit amount of $500.00 as damages.
Ms Turner also argues that she was coerced into agreeing to enter into the contract because she was told that only one sauna was available, which was in stock, and that other people were interested so she would have to act quickly. She also says she was not made aware that she would have to provide able-bodied assistance for the installation.
Spas argue that Ms Turner got a very good price for the sauna package (as a Home Show discount and free delivery and onsite setup was included), and that it was the discounted price with free delivery that motivated her to proceed quickly with her purchase.
The Tribunal did not find evidence of coercion:[3]
Ms Turner: But you’re saying that you can’t – like, you’re just dismissing everything that I’ve said about them coercing me into buying it.
Hardin JP: But I would not find that to be coercive. That might be what the…
Ms Turner: If I…
Hardin JP:…legal profession might call puffery in that – hurry in, the last moment, sale closes today, those sorts of things, but that is not coercion.
[3]Transcript page 1-5, lines 16 – 25.
The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[4] There is nothing in the transcript that persuades me that the Tribunal should have taken a different view of the facts.
[4]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
There is no reasonably arguable case that the decision was in error. Leave to appeal should be, and is refused.
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