You're Secure (a firm) v George
[2014] QCATA 295
•21 October 2014
| 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 Aluminium Industrie Vaassen BV v Romalpa Aluminium Ltd [1976] 1 WLR 676 |
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, Secure removed the fittings, or most of them, in May 2014. There is undisputed evidence that those items are now stored on Secure’s premises, and that Secure will promptly re-install them, so soon as the outstanding moneys are paid.[3]
[3]Transcript page 11, line 10; page 12 line 5; page 21 line 6, lines 46 – 47.
However, George rejects that arrangement and seeks repayment of $1,044[4] she has already paid to Secure.
[4]Corrected by the Transcript to $1,000 - page 8, lines 33 – 34, 41; page 30 line 9.
George commenced these proceedings on the basis that ‘You’re Secure [came] onto my property without permission and removed [the screens] and [took] them back’.[5]
[5]Application for minor civil dispute MCDO 1211/14 filed 4 June 2014.
The Tribunal (Struik and Dollman JJP) interpreted that complaint as an allegation that Secure, by removing the goods, repudiated the agreement.[6] As the parties did not have legal representation – and for that they were commended[7] – the arcana of repudiation of contract, or major failure within the meaning of the Australian Consumer Law[8] were not debated. In the event, Secure was ordered to refund to George the sum of $1,000.
[6]This was first suggested by Struik JP at Transcript page 23 lines 26 – 29: “There’s view that your removal of the goods ... repudiated the contract ... Okay? That’s that.”
[7]Transcript page 27 line 5: “Yeah. Don’t involve lawyers, not for $452.”
[8]Competition and Consumer Act 2010 (Cth) Schedule 2 s 260; Fair Trading Act 1989 (Qld) s 16.
Secure now seeks leave to appeal,[9] submitting that, in its finding of repudiation, the Tribunal erred in fact and in law.[10]
[9]As required by QCAT Act s 142(3)(a)(i).
[10]Application for leave to appeal filed 19 August 2014.
With due respect, I am satisfied that the finding of repudiation is erroneous, for reasons I shall now endeavour to explain. Possibly the Tribunal was distracted by disapproval of Secure's high-handed removal of the screens.[11] As it observed, and as Secure conceded,[12] the existence of a Romalpa clause[13] did not authorise any such action. However, this is not a common law action for trespass, and such actions are not within the Tribunal’s jurisdiction in minor civil disputes.[14]
[11]A point repeatedly raised by the Tribunal: Transcript pages 17 lines 13 – 14; 18 lines 24 – 29; 19 line 20.
[12]Transcript page 17 line 42.
[13]Aluminium Industrie Vaassen BV v Romalpa Aluminium Ltd [1976] 1 WLR 676: It was a term of the agreement that the goods "remain[ed] the property of You're Secure until paid for in full".
[14]“Minor civil dispute” is defined in Schedule 3 of the QCAT Act.
As the Tribunal reasonably suggested, George could have sued Secure for breach of warranty, and Secure might have sued her for debt, if they thought it worth the expense.[15] Better still, some reasonable compromise might have been reached[16], and perhaps that is still a possibility. But be that as it may, the real and present question is whether repudiation is established according to law.
[15]Transcript page 18 lines 24-29; page 22 lines 23 – 24.
[16]Transcript page 28 lines 32 – 40.
Before an affirmative answer can be supported, it must appear more probable than not that Secure has abandoned the agreement:
You must examine what that conduct is so as to see whether it amounts to a renunciation, [that is] to an absolute refusal to perform the contract.[17]
[17]Mersey Steel & Iron Co v Naylor Benzon & Co (1884) 9 App Cas 434 at 438-439 per Lord Selborne (emphasis added); Berry v Dryfoot Holdings Ltd [2013] NZHC 2817 at [21].
Indeed, a dictum of the Tribunal itself[18] approximates to the law as stated above, but it is not reflected in the decision.
[18]Transcript page 24 lines 16 – 17: “[R]epudiation is where you do something which completely and utterly means that the contract doesn’t exist any more”: per Struik JP.
The legal issue, as usual, turns on the evidence available. In this case, as noted above, there is undisputed evidence that Secure holds the goods in store, ready for re-installation[19] when full payment is made. There is no suggestion, either by George or the Tribunal, that Secure does not genuinely profess that intention and desire.
[19]“Waiting to go back out”: Transcript page 21 line 6.
There is a wealth of authority warning courts and tribunals that a finding of repudiation is an extreme remedy, only to be granted with considerable caution. As Wilson J said in Shevill v Builders Licensing Board,[20] ‘repudiation of a contract is a serious matter and is not lightly to be found or inferred’. One must look to all the circumstances of the case to see whether the conduct in question ‘amounts to a renunciation, to an absolute refusal to perform the contract’.
[20](1982) 149 CLR 620 at 633.
Wilson J’s statement was revisited and approved by the High Court in The Progressive Mailing House Pty Limited v Tabali Pty Ltd,[21] and applied by the Queensland Court of Appeal in Keswick Developments Pty Ltd & Anor v Keswick Island Pty Ltd.[22] In Keswick it was found that a party’s conduct ‘could not have reasonably conveyed the impression that it wished to give up [its] interest’ in the subject transaction. Those words are apt to describe the present situation.
[21](1985) 157 CLR 17 at 33 (Mason J) and 40 (Brennan J).
[22][2012] 2 Qd R 114; [2012] QCA 379 at [46]. Similar approvals are to be found in the South Australian Full Court (Provident Capital Ltd v SZLASA (2010) 273 LSJS 262; [2010] SASCFC 65) and in Courts of Appeal in Victoria and Western Australia: R & A Cab Co Pty Ltd v Kotzman [2008] VSCA 68; Douglas v Cicirello [2006] ANZ ConvR 2; [2006] WASCA 226 at [42].
Therefore, as I see it, a finding of repudiation in this case is not reasonably tenable. That not to condone Secure’s peremptory removal of the goods. It is simply a revision of the rationale that governed the decision below. The decision challenged is at odds with authority, and if not corrected, would result in substantial injustice. Leave to appeal should be granted, and the orders appealed from must be set aside.
ORDERS
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.
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