Loading...
Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

In the Green Pty Ltd v Nearmap Australia Pty Ltd

 

[2020] QCATA 74

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

In the Green Pty Ltd v Nearmap Australia Pty Ltd [2020] QCATA 74

PARTIES:

In the Green Pty Ltd

(applicant/appellant)

 

v

 

Nearmap Australia Pty Ltd

(respondent)

APPLICATION NO/S:

APL190-19

ORIGINATING APPLICATION NO/S:

MCDO73-19 Caboolture

MATTER TYPE:

Appeals

DELIVERED ON:

19 May 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

Leave to appeal refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – where traders entered into a contract for supply of aerial mapping services showing solar panels – where the consumer wanted access to all solar panel products in the software associated with the mapping – where the consumer was advised all panels were noted – where the consumer was given access to a demonstration mode – where the consumer was also told further panels could be added – where after contract the consumer purported to terminate the contract because a particular panel was missing from the database – where the consumer claimed recovery of a first payment made under the contract – where the supplier claimed by counter application for balance owing under the contract – where the Tribunal found no breach of ACL guarantee – where the Tribunal determined in any case any breach was not major and could be remedied

Competition and Consumer Act 2010 (Cth), Schedule 2 s 61, s 267(3), s 268

Morrison v Chen [2015] QCATA 129

Pickering v McArthur [2005] QCA 294

REPRESENTATION:

 

Applicant:

Self-represented by J Dantzic

Respondent:

Self-represented by Ms Pomme

APPEARANCES:

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

  1. [1]
    The appellant company (‘Green’) was utilised by Mr Dantzic to start a business assisting customers with solar panels. Mr Dantzic was a director. He contacted the respondent company (‘Nearmap’). He enquired about aerial imagery supplied by the respondent for a fee.
  2. [2]
    Green entered into an agreement with Nearmap for 12 months’ access to the aerial imagery. The cost for 12 months was $4,125 paid by 12 monthly instalments. Green paid an initial instalment of $343.75.
  3. [3]
    Green had problems using the software. Green decided not to continue with the contract and purported to terminate the contract.
  4. [4]
    Green filed an application for consumer dispute in the tribunal seeking recovery of the payment of $343.75. Nearmap made a counter application for the balance due under the contract of $3,781.25.
  5. [5]
    The matter was heard by a Member on 11 June 2019. His decision was that Green should pay Nearmap the sum of $3,781.21.
  1. [6]
    Green is unhappy with that decision and seeks leave to appeal. Given this is an appeal from a decision made in the Tribunal’s minor civil dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.[1] 
  2. [7]
    Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.[2] 
  1. [8]
    The grounds of appeal in the application for leave to appeal lack precision though this is not unusual in Tribunal proceedings with self-represented parties. Effectively the appellant complains that the aerial imagery was not fit for the purpose disclosed by Green to Nearmap when the agreement was entered into and that constituted a major failure of guarantee under the Competition and Consumer Act 2010 (Cth) Schedule 2 (‘ACL’), entitling Green to a full refund.
  2. [9]
    Mr Dantzic for Green explained the business he wanted to run through the Green corporate structure in his initial application for consumer dispute. He said his idea was to use the electronic mapping data to design solar systems for potential customers. He wanted to be able to design systems providing customers with correct information on the performance of different panels based on selection from a wide variety of solar panel manufacturers.
  3. [10]
    Nearmap’s software package used aerial imagery of rooftops with existing solar panels shown and identified.
  4. [11]
    At hearing the learned Member asked for clarification about the contract between the parties. Mr Dantzic said he had had only one short telephone conversation on 22 January 2019 with a sales representative of Nearmap, Mr Duffy, which lasted 4 minutes 16 seconds in which he asked whether all solar panels were in their system. He said at hearing:

Mr Dantzic: That was our initial conversation, and during that conversation I asked about whether all the panels are in there, because for us we were time poor. I – we embarked on setting up this business in a matter of a month or so. So I was time poor. We discussed that the panels were in there. He said yes. And we discussed the layout of how the software worked, angles of the building and the fact they took maps, photographs and that. So it was during that conversation.

Member: All within four minutes.

Mr Dantzic: Four minutes. Yes.[3]

  1. [12]
    The learned Member said in his reasons given at the conclusion of the hearing, that he was satisfied a discussion took place between the parties concerning the inclusion in the software package of all solar panels available in Australia at the time. Presumably the Member was talking about the conversation on 22 January 2019.
  2. [13]
    The learned Member also found however that he was satisfied that Mr Duffy had said even if the panels were not available in the program that they could easily be added.
  3. [14]
    Mr Dantzic tried to use the program but had problems finding a particular solar panel product. It was that difficulty and because Mr Duffy had made a representation in relation to all panels in Australia being in the system, that Mr Dantzic thought he was entitled to terminate the contract and recover his deposit.
  4. [15]
    The learned Member found there was no other evidence to suggest that any other panel was missing from the system. He accepted the missing panel was an important one because that claim was not challenged by Nearmap at hearing, however it was just one panel out of many. The evidence suggested there was a process available to Mr Dantzic to include the panel. There was also an offer made by Nearmap to fix the problem.
  5. [16]
    The learned Member said the matter was appropriately covered by the ACL. He found that Mr Dantzic had not undertaken appropriate research before purchasing the software. Mr Dantzic had purchased the program presuming it was going to do all the things he wanted it to do, but he did not communicate what he wanted to do with the program to Nearmap.
  6. [17]
    The learned Member does not say what guarantees were implied into the contract by the ACL. In the circumstances one would think the relevant guarantee was a guarantee of fitness of services for a particular purpose. Mr Dantzic refers to a failure of fitness for purpose when the agreement was entered into in his application for leave to appeal or appeal.
  7. [18]
    By s 61 ACL:

Guarantees as to fitness for a particular purpose etc.

  1. If:
  1. a person (the supplier ) supplies, in trade or commerce, services to a consumer; and
  1. the consumer, expressly or by implication, makes known to the supplier any particular purpose for which the services are being acquired by the consumer;

there is a guarantee that the services, and any product resulting from the services, will be reasonably fit for that purpose.

  1. If:
  1. a person (the supplier ) supplies, in trade or commerce, services to a consumer; and
  2. the consumer makes known, expressly or by implication, to:
  1. the supplier; or
  2. a person by whom any prior negotiations or arrangements in relation to the acquisition of the services were conducted or made;

the result that the consumer wishes the services to achieve;

there is a guarantee that the services, and any product resulting from the services, will be of such a nature, and quality, state or condition, that they might reasonably be expected to achieve that result.

  1. This section does not apply if the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill or judgment of the supplier.

  1. [19]
    Generally, the learned Member concluded, Nearmap was not in breach of any of its obligations in providing the program to Green.
  2. [20]
    In Morrison v Chen[4] the Appeal Tribunal discussed the very busy and challenging Minor Civil Dispute jurisdiction of the Tribunal and the obligation to give adequate reasons for decision:

16 In the tribunal’s minor civil disputes jurisdiction, giving immediate oral decisions accords with the spirit and purpose of the QCAT Act. Those decisions will not be exposed to criticism which fails to acknowledge the circumstances in which they are given, or the pressure of the tribunal’s caseload.

17 Nevertheless, the tribunal’s reasons for decision should set out the material findings of fact, the applicable law and the reasons for applying the law in the way expressed in the decision.[5]

  1. [21]
    It is unfortunate that there was not greater precision concerning disposition of the matter in applying the law of the guarantee to the facts, however, it is reasonably clear the basis upon which the learned Member made his decision that there was no breach of guarantee under the ACL.
  2. [22]
    The learned Member made clear that he found that Mr Duffy had said before contract that even if the panels were not available in the program that they could easily be added. Further he found the evidence suggested there was a process available to Green (Mr Dantzic) to include the single missing panel.
  3. [23]
    There was also evidence at hearing that before entering into the contract Mr Dantzic was given an opportunity to trial the mapping. He was allowed to try a demonstration mode of the program and given a username and password for access.
  4. [24]
    The learned Member also found that there was an outstanding offer, after contract, by the respondent to fix the problem he subsequently complained about.
  5. [25]
    On this basis the learned Member found there was no breach of guarantee.
  6. [26]
    There is an exception to the guarantee of fitness for purpose where the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill or judgement of the supplier. The opportunity granted Mr Dantzic before entering into the contract to access a demonstration mode of the program which presumably gave him an opportunity to explore the available panels and see what was missing, and the statement by Mr Duffy that other panels could be added if required, made it unreasonable of him, after contract, to claim reliance on the skill or judgment of Nearmap that all panels were included in the database.
  7. [27]
    Further, the learned Member found that regardless whether or not there was a breach of guarantee, Green was not entitled to the remedy sought or any remedy generally.
  8. [28]
    In his application for leave to appeal or appeal Mr Dantzic said he had a right to a full refund and referred to “definitions of a major problem are attached.” Attached to the application is a very general summary produced by the Australian Competition and Consumer Commission about remedies available if a product or service fails to meet consumer guarantees.
  9. [29]
    The extract considers, in only the most general of terms, remedies available for breach.
  10. [30]
    Where there is a breach of guarantee the extent of the available remedy depends on whether or not the failure to comply with the guarantee is major or otherwise. If the failure to comply with the guarantee cannot be remedied or is a major failure, by s 267(3) of the ACL the consumer may terminate  the contract or recover compensation for any reduction in the value of the services below the amount paid or payable.
  11. [31]
    By s 268 a failure to comply with the guarantee is defined as a major failure if the services would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure or, as relevant here, the services are substantially unfit for the purpose for which services of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose.
  12. [32]
    The learned Member made clear that many consumers who are unhappy after purchase claim they would not have purchased the goods or services if they had known more. The requirement under the ACL is that the goods or services would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure. Here the learned Member found the complaint related to an easily remedied problem that Mr Dantzic was told was available both before and after contract. The learned Member found a reasonable consumer in the within circumstances, armed with that knowledge, wanting the services, would still have acquired them.
  13. [33]
    That was a reasonable conclusion to draw and available to the learned Member.
  14. [34]
    Finally the learned Member found that the defect complained about could easily and within a reasonable time have been remedied to make them fit for purpose. Given that, the failure, if there was one, was not major.
  15. [35]
    Where a failure is not major the consumer may only require the supplier to remedy it within a reasonable time. It is only if the supplier refuses to do that that the consumer may proceed to claim different relief against the supplier. Given the offer to rectify the complaint about omission of the panel and to assist to put the software in order, there was no relief available to Green under the ACL.
  16. [36]
    There is no reasonable argument raised that there has been any error on the part of the learned Member that needs to be corrected. There has been no substantial injustice done Green. Leave to appeal is refused.

Footnotes

[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i) (‘QCAT Act’).

[2] Pickering v McArthur [2005] QCA 294.

[3] Transcript 1-14 Lines 21-30.

[4] [2015] QCATA 129.

[5] Ibid [16]-[17].

Close

Editorial Notes

  • Published Case Name:

    In the Green Pty Ltd v Nearmap Australia Pty Ltd

  • Shortened Case Name:

    In the Green Pty Ltd v Nearmap Australia Pty Ltd

  • MNC:

    [2020] QCATA 74

  • Court:

    QCATA

  • Judge(s):

    Member Howe

  • Date:

    19 May 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
Help

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.