White v Hayes - [2023] QCATA 116

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

White v Hayes & Anor [2023] QCATA 116

PARTIES:

KAREN MAREE WHITE

(applicant/appellant)

v

ROBYN HAYES AND TERRY HAYES

(respondent)

APPLICATION NO/S:

APL024-23

ORIGINATING APPLICATION NO/S:

MCDO411-22 (Brisbane)

MATTER TYPE:

Appeals

DELIVERED ON:

13 September 2023

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

IT IS THE DECISION OF THE APPEAL TRIBNAL THAT:

1.     Leave to appeal is granted.

2.     The appeal is allowed.

3.     The decision of 9 November 2022 is set aside.

4.     The application in a minor civil dispute – consumer dispute filed 21 April 2022 (MCDO411/22 – Brisbane) is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where application for a minor civil dispute consumer dispute – where second-hand lounge sold on Gumtree – where seller was not a trader – whether tribunal lacked jurisdiction to order refund

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 32, s 61, s 143, s 145, s 146

Cachia v Grech [2009] NSWCA 232

Ericson v Queensland Building Services Authority [2013] QCA 391
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
Penfold v Firkin & Balvius [2023] QCATA 11

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

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

What is this application about?

The applicant, Ms White, advertised a lounge for sale on Gumtree. The lounge was purchased sight-unseen by the respondents, Mr and Mrs Hayes, who then arranged for it to be collected from Ms White and delivered to their home on 8 March 2022.
Mr and Mrs Hayes were not happy with the condition of the lounge and filed an application for a minor civil dispute – consumer dispute (MCDCD) on 21 April 2022 seeking a refund of the $2,500.00 they paid Ms White for the lounge, plus $550.00 being the costs they incurred to have it delivered to them.
By a decision made 9 November 2022 the Tribunal below ordered that Ms White pay Mr and Mrs Hayes the $3,050.00 payment sought.
Ms White wants to appeal the decision, but to do so, leave is first required.[1]
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 143(3) (‘QCAT Act’); Application for leave to appeal or appeal filed 27 June 2023.
Upon reviewing the application for leave to appeal or appeal and the MCDCD file on 11 April 2023 I made directions inviting submissions from the parties as follows:
The Appeal Tribunal intends to decide as a preliminary matter whether the application for leave to appeal should be granted and whether the judgment given in favour of Robyn Hayes on 9 November 2022 was irregularly entered.…

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: [2023] QCATA 116
Decision Date: 13 September 2023

CaseChat Overview and Summary

In the matter of White v Hayes, the appellant, Mr White, sought a review of a decision made by the tribunal in relation to a consumer dispute. The dispute arose from the sale of a second-hand lounge on Gumtree, where Mr White, the buyer, sought a refund claiming the lounge was defective. The respondent, Mr Hayes, the seller, argued that he was not a trader within the meaning of the relevant legislation and therefore, the tribunal lacked the jurisdiction to order a refund.

The primary legal issue before the appeal tribunal was whether the tribunal had the jurisdiction to order a refund in circumstances where the seller was not considered a trader. The tribunal had previously held that it lacked jurisdiction to order a refund as the seller was not a trader, which decision Mr White sought to appeal. The appeal tribunal was required to determine if the tribunal’s jurisdictional finding was correct and, if so, whether the appeal should be dismissed.

The appeal tribunal found that the tribunal did indeed lack jurisdiction to order a refund as the seller was not a trader. The tribunal held that the distinction between a trader and a non-trader is crucial under the applicable legislation, and since the seller was not a trader, the tribunal had no authority to order a refund. The appeal tribunal concluded that the tribunal’s jurisdictional finding was correct and, accordingly, the appeal was allowed, and the previous decision was set aside. The tribunal further dismissed Mr White’s application for a refund in the consumer dispute.

The tribunal granted leave to appeal, allowed the appeal, set aside the previous decision, and dismissed the application. This outcome clarifies the jurisdictional limits of the tribunal in consumer disputes involving second-hand goods sold by non-traders.

Orders

Orders of the court

IT IS THE DECISION OF THE APPEAL TRIBNAL THAT:

1. Leave to appeal is granted.

2. The appeal is allowed.

3. The decision of 9 November 2022 is set aside.

4. The application in a minor civil dispute – consumer dispute filed 21 April 2022 (MCDO411/22 – Brisbane) is dismissed.

Background

Background to the litigation

Full text does not contain this section.

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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