You're Secure (a firm) v George - [2014] QCATA 295

CITATION:

You’re Secure (a firm) v George [2014] QCATA 295

PARTIES:	You’re Secure (a firm) (Appellant)
v
Angelia Louisa George (Respondent)

APPLICATION NUMBER:

APL350-14

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes, Member

DELIVERED ON:

21 October 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal is granted.

2. The orders made herein on 23 July 2014 are set aside.

3. The application filed herein on 4 June 2014 is dismissed.

CATCHWORDS:

APPEALS – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where agreement to install security screens in applicant/respondent’s premises – where applicant/respondent complains of defective performance – where applicant/respondent withholds part payment – where supplier of goods and services removed goods from applicant/respondent’s premises – where applicant/respondent willing to re-install goods on payment of contract price in full – whether conduct of latter amounts to repudiation of contract – where no absolute refusal to honour contract – where primary tribunal orders refund to consumer – whether leave to appeal should be granted

Competition and Consumer Act 2010 (Cth), Schedule 2, s 260
Fair Trading Act 1989 (Qld), s 16
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 142, Schedule 3

Aluminium Industrie Vaassen BV v Romalpa Aluminium Ltd [1976] 1 WLR 676
Berry v Dryfoot Holdings Ltd [2013] NZHC 2817
Douglas v Cicirello [2006] ANZ ConvR 2; [2006] WASCA 226
Keswick Developments Pty Ltd & Anor v Keswick Island Pty Ltd [2012] 2 Qd R 114; [2012] QCA 379
Mersey Steel & Iron Co v Naylor Benzon & Co (1884) 9 App Cas 434
Provident Capital Ltd v SZLASA (2010) 273 LSJS 262; [2010] SASCFC 65
R & A Cab Co Pty Ltd v Kotzman [2008] VSCA 68
Shevill v Builders Licensing Board (1982) 149 CLR 620
The Progressive Mailing House Pty Limited v Tabali Pty Ltd (1985) 157 CLR 17

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 (QCAT Act).

REASONS FOR DECISION

The appellant firm (“Secure”) carries on business at Redbank, near Ipswich as a supplier and installer of security screens and kindred products.
The respondent Angelia Louisa George (“George”) is a resident of Quaker’s Hill, a western suburb of Sydney.
In January 2014 George purchased a house property at Redbank Plains Queensland ("the premises") and engaged Secure to supply and fit security screens there for a price of $1,452. Secure did so on 14 February 2014.
George asserts, and Secure denies[1] that, despite remedial action by Secure, the goods, or the installation of them, was defective. In particular, George complains that a sliding security screen did not close properly. The Tribunal regarded the defects, if any, as minor.[2]
[1]Transcript of hearing 21 July 2014 (“Transcript”) page 21, line 14; page 43, line 44.
[2]Transcript page 28 line 12.
After several months of disputation, and George’s refusing to pay the agreed price in full,…

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.

Continue reading You're Secure (a firm) v George

Details

AGLC: You're Secure (a firm) v George [2014] QCATA 295
Case: [2014] QCATA 295
Decision Date: 21 October 2014

CaseChat Overview and Summary

The parties involved in this case are You’re Secure, a firm, and George, who engaged You’re Secure to install security screens at his premises. George complained about the quality of the work, and as a result, withheld part of the payment. You’re Secure removed the goods from George’s premises, and George was willing to reinstall them upon receiving the full payment. The primary tribunal ruled in favour of George, ordering a refund. You’re Secure sought leave to appeal this decision.

The primary legal issue addressed by the court was whether George’s conduct amounted to a repudiation of the contract. The court examined the circumstances to determine if George’s actions constituted an absolute refusal to honour the contract. The court noted that while George withheld part of the payment, he was willing to reinstall the goods upon full payment, which did not amount to an absolute refusal. Additionally, the court assessed whether the primary tribunal’s decision to order a refund was correct. The court considered whether the tribunal appropriately assessed the conduct of both parties and if it misapplied the law in granting a refund to George.

The court found that the primary tribunal did not correctly assess the conduct of both parties and misapplied the law. The court held that George’s conduct did not amount to a repudiation of the contract, as he was willing to reinstall the goods upon receiving full payment. The court also found that the primary tribunal’s order for a refund to George was inappropriate. Consequently, the court granted leave to appeal and set aside the orders made on 23 July 2014. The application filed on 4 June 2014 was dismissed.

In summary, the court granted leave to appeal, set aside the orders made on 23 July 2014, and dismissed the application filed on 4 June 2014. The court determined that George’s conduct did not amount to a repudiation of the contract, and the primary tribunal misapplied the law in ordering a refund to George.

Orders

Orders of the court

1. Leave to appeal is granted.

2. The orders made herein on 23 July 2014 are set aside.

3. The application filed herein on 4 June 2014 is dismissed.

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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