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Quaglieri v Bi-Rite Electrical[2016] QCATA 170

Quaglieri v Bi-Rite Electrical[2016] QCATA 170

CITATION:

Quaglieri v Bi-Rite Electrical [2016] QCATA 170

PARTIES:

Giovanni Quaglieri

(Applicant/Appellant)

v

Bi-Rite Electrical

(Respondent)

APPLICATION NUMBER:

APL212 -16

MATTER TYPE:

Appeals

HEARING DATE:

17 October 2016

HEARD AT:

Brisbane 

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

1 November 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Leave to appeal granted.
  2. Appeal allowed.
  3. The decision of 24 June 2016 is set aside.
  4. The proceeding is returned to the tribunal for rehearing, before a differently constituted tribunal.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTIO LEGISLATION – CONSUMER PROTECTION – GUARANTEES AND WARRANTIES IN CONSUMER TRANSACTIONS – GUARANTEES, CONDITIONS AND WARRANTIES – where consumer purchased washing machine and extended warranty – where consumer claimed persistent fault within extended warranty period – where retailer denied responsibility – where tribunal found retailer’s insurer liable for extended warranty obligations – where tribunal dismissed claim – whether retailer liable under extended warranty – whether grounds for leave to appeal

Pickering v McArthur [2005] QCA 294

APPEARANCES and REPRESENTATION (if any):

Applicant:

G Quaglieri in person

Respondent:

W Skapa for Bi-rite Electrical

REASONS FOR DECISION

  1. [1]
    Giovanni Quaglieri bought a washing machine from Bi-Rite Electrical Browns Plains in January 2012. The washer had a 2-year manufacturer’s warranty. Mr Quaglieri bought an extended 3-year warranty, so the washer was covered by some form of warranty for five years from purchase.
  2. [2]
    In April 2015, Mr Quaglieri noticed that the washer’s spin cycle was noisy and out of balance. The washer was inspected and repaired in May 2015.
  3. [3]
    In August 2015, Mr Quaglieri could not get an ‘extra high spin’ on bulky or large loads. The washer was inspected in September but no fault was found.
  4. [4]
    In October 2015, Mr Quaglieri reported the same problem. The washer was taken away, parts were replaced and the washer was returned.
  5. [5]
    In November 2015, Mr Quaglieri again reported problems with the spin cycle. No fault was found.
  6. [6]
    In December 2015, Mr Quaglieri reported the same problem. No fault was found although the repairer noted that it might be a problem with the washer’s software, which was not covered under the extended warranty.
  7. [7]
    Mr Quaglieri filed a claim for a refund of the cost of his washer. The tribunal dismissed his claim. He wants to appeal that decision.
  8. [8]
    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]
  9. [9]
    Mr Quaglieri says the tribunal failed to consider Bi-Rite’s contradictory statements. He says that his washer should be replaced because there is a rule that, if there are four claims for the same fault, the washer will be replaced. He says Bi-Rite lied under oath, and didn’t serve a response to his claim. He says Bi-Rite could not prove the washer was working according to the specifications.

Preliminary matters

  1. [10]
    Mr Quaglieri handed up to the tribunal both the washer’s owners’ manual and the extended warranty brochure. The tribunal handed them back before handing down its decision.[3] These documents formed essential evidence for the tribunal’s decision-making process. They should have been marked as exhibits and retained on the tribunal file.

The grounds of appeal

  1. [11]
    In reading the transcript, it became clear to me that leave to appeal should be granted, and the appeal allowed, but for none of the reasons advanced by Mr Quaglieri.
  2. [12]
    The tribunal dismissed Mr Quaglieri’s claim because it formed the view that Mr Quaglieri’s rights, if any, were against the warranty provider.[4] Mr Skapa, for Bi-Rite, told the tribunal that an ‘outside company’ provided the warranty.[5]
  3. [13]
    However, a careful reading of the customer care plan shows that Mr Skapa was misinformed. The customer care plan ‘is a warranty and service product supplied by Us’. ‘We, Us, Our’ refer to the selling retailer whose name is on the original invoice, not the insurer. That means Bi-Rite. The ‘outside company’ is involved only because there is a separate indemnity agreement.
  4. [14]
    Mr Quaglieri was entitled to claim the details of the customer care plan against Bi-Rite. The tribunal failed to consider his claim in light of the terms of the customer care plan. The tribunal was in error.
  5. [15]
    Leave to appeal should be granted and the appeal allowed. The decision of 24 June 2016 is set aside. The proceeding is returned to the tribunal for re-hearing by a different tribunal. So there is no doubt, the customer care plan, the washer warranty card, and the owner’s manual shall form part of the tribunal file.

Footnotes

[1]   QCAT Act s 142(3)(a)(i).

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

[3]  Transcript page 1-21, line 42; page 1-23, lines 25 – 36.

[4]  Transcript page 1-24, line 46 to page 1-25, line 1.

[5]  Transcript page 1-19, lines 14 – 24.

Close

Editorial Notes

  • Published Case Name:

    Quaglieri v Bi-Rite Electrical

  • Shortened Case Name:

    Quaglieri v Bi-Rite Electrical

  • MNC:

    [2016] QCATA 170

  • Court:

    QCATA

  • Judge(s):

    Senior Member Stilgoe OAM

  • Date:

    17 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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