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Momentum Industries Pty Ltd v Smith[2016] QCATA 150

Momentum Industries Pty Ltd v Smith[2016] QCATA 150

CITATION:

Momentum Industries Pty Ltd v Smith [2016] QCATA 150 

PARTIES:

Momentum Industries Pty Ltd

(Applicant/Appellant)

v

Kelsie Smith t/as Vivid Obsession Group

(Respondent)

APPLICATION NUMBER:

APL153 -16

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane 

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

12 October 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – SALE OF GOODS – PERFORMANCE OF THE CONTRACT – DUTIES OF BUYER AND SELLER GENERALLY – DELIVERY – REJECTION OF GOODS BY THE BUYER – where contract to manufacture tights – where buyer alleged tights defective – where tribunal found tights defective – where seller appealed on error of fact – whether grounds for leave to appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28(2), s 28(3)(b)

Chambers v Jobling (1986) 7 NSWLR 1

Dearman v Dearman (1908) 7 CLR 549

Fox v Percy (2003) 214 CLR 118

Pickering v McArthur [2005] QCA 294

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

  1. [1]
    Kelsie Smith t/as Vivid Obsession Group ordered 140 pairs of tights from Momentum Industries Pty Ltd, after a lenghty series of emails about style, fit and cut. He paid Momentum $3500.
  2. [2]
    Momentum did not manufacture the tights in the way Ms Smith anticipated. They were cut too high and were too long. Mr Smith filed a claim for reimbursement of the $3500 contract price. The tribunal ordered Mr Smith return the tights and Momentum reimburse the money.
  3. [3]
    Momentum wants to appeal that decision. 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 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]
  4. [4]
    Momentum says that it does not believe the tribunal used the factual evidence submitted by Mr Smith. It says the tribunal used its own personal opinion and hearsay evidence to make a decision. It says the tribunal used evidence ‘not visible to us’ to make the decision. It says that Mr Smith, bearing the onus of proof, did not discharge that onus. It says that its experience in the industry was a factor in the tribunal’s decision but the tribunal itself had no expertise in the industry. It says the tribunal failed to recognise the tights Mr Smith said he sent as a sample were not the tights Momentum says it received. It says the tribunal failed to recognise Mr Smith’s expertise. It says the tribunal, because it did not understand the industry, therefore wrongly placed the burden of getting the correct product on Momentum, not Mr Smith.
  1. [5]
    It is apparent that the bulk of Momentum’s submissions relate to the tribunal’s findings of fact. The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[3]  An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[4] 
  1. [6]
    The tribunal gave lengthy and thoughtful reasons for its decision. It looked carefully at the evidence. I, too, have looked at the evidence. I read the transcript. The evidence can support the tribunal’s findings and I can find no compelling reason to come to a contrary view.
  1. [7]
    The tribunal was obliged to come to its own view of the evidence. If this is what is meant by Momentums’ comment that the tribunal ‘used its own personal opinion’, then the tribunal acted correctly.
  1. [8]
    The tribunal is not bound by the rules of evidence.[5] It may use hearsay evidence, subject to the requirement to act fairly and according to the substantial merits of the case.[6] It is true that Mr Smith did not call evidence from the thirteen people who complained to him about the fit of the tights. Similarly, Momentum did not call evidence from the different manufacturers about the different standards manufacturers adopt. Importantly, the tribunal accepted direct evidence from Mr Smith that the tights were unacceptable: they rode too high and were too long.[7] I am not persuaded that the tribunal improperly used hearsay evidence or that it relied on evidence that was ‘not visible’ to Momentum.
  1. [9]
    Mr Smith was obliged to discharge the onus of proof on the balance of probabilities. The tribunal found that he did so. The evidence can support that finding and I can find no compelling reason to come to a contrary view.
  1. [10]
    It is true that the tribunal members had no experience in manufacturing clothing. They do not need that expertise; they rely on the evidence presented to them by the parties. The significance of industry expertise is that the tribunal found Momentum had it but Mr Smith did not and, therefore, Mr Smith was entitled to rely on Momentum’s expertise.[8] Momentum may disagree with that finding but it can be supported by the evidence and I can find no reason to come to a contrary view.
  1. [11]
    The tribunal acknowledged that the parties disagreed about the sample Mr Smith sent to Momentum.[9] After acknowledging the different evidence, the tribunal chose to interpret that evidence in favour of Mr Smith.[10] Again, the evidence can support that finding.
  1. [12]
    There is nothing in the transcript to persuade me that the tribunal should have taken a different view of the facts. There is no reasonably arguable case that the tribunal was in error. Leave to appeal should be refused.

Footnotes

[1] QCAT Act s 142(3)(a)(i).

[2] Pickering v McArthur [2005] QCA 294 at [3].

[3] Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.

[4] Chambers v Jobling (1986) 7 NSWLR 1 at 10.

[5]  QCAT Act s 28(3)(b).

[6]  QCAT Act s 28(2).

[7]  Transcript page 1-63, lines 36 – 42.

[8]  Transcript page 1-65, lines 4 – 12.

[9]  Transcript page 1-63, lines 13 – 18.

[10]  Transcript page 1-63, lines 18 – 22.

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Editorial Notes

  • Published Case Name:

    Momentum Industries Pty Ltd v Smith

  • Shortened Case Name:

    Momentum Industries Pty Ltd v Smith

  • MNC:

    [2016] QCATA 150

  • Court:

    QCATA

  • Judge(s):

    Senior Member Stilgoe OAM

  • Date:

    12 Oct 2016

Appeal Status

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

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