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The Boutique Collection v Golden QCATA 129
The Boutique Collection v Golden  QCATA 129
THE BOUTIQUE COLLECTION
Application and Appeals
5 October 2017
17 November 2017
THE APPEAL TRIBUNAL ORDERS THAT:
APPEAL – LEAVE TO APPEAL – where the respondent rented a holiday apartment from the applicant – where the amenities of the apartment were found to fall short of what was advertised – where compensation for loss of amenities was ordered – where the applicant contends that the hearing was procedurally unfair – where no material errors of law are made out on appeal – where the application for leave is refused
APPEARANCES and REPRESENTATION (if any):
Patrick Golden (self-represented)
Robert Whyte (agent for The Boutique Collection)
REASONS FOR DECISION
- The application is for leave to appeal a decision made on a claim brought under section 267(3) of the Australian Consumer Law for compensation for reduced services provided under a holiday letting agreement for a seven night stay at a Palm Cove apartment for the total cost of $2500.
- The apartment was advertised online as five star standard with premium fittings and unsurpassed elegance. The respondent’s case in the tribunal was that the apartment they were presented with did not match the advertised description because it was dirty, smelly with stained soft furnishings, substandard fixtures and no internet connection, as well as other deficiencies.
- Damages were awarded by way of compensation to the respondent in the sum of $1125. Expressed another way, this is a reduction of 45 per cent from the tariff of $2500. Filing fees of $112.50 and interest of $97.40 calculated at 10 per cent from 31 July 2016 to 12June 2017 were also allowed, which meant that the applicant was ordered to pay to the respondent a total of $1334.90 by way of compensation.
- The applicant seeks leave to appeal that outcome on the basis that natural justice was not observed and that the case was not properly heard, being so prejudiced in its presentation to the point that it must have adversely affected the outcome, therefore depriving the applicant the chance to succeed rather than fail.
- The proposed grounds of appeal are that:
- the QCAT member allowed the respondent to refer to mediation discussions;
- the hearing proceeded on short notice before proper preparation had been provided to the respondents;
- the written submissions filed 6 February 2017 were not considered or taken into account by the tribunal when determining the facts and final decision; and
- the tribunal took into account the terms of a settlement offer made by the applicant to the respondent in good faith to settle a dispute.
- Each ground must be considered to determine if any one of them or, in combination, are likely to have had the effect the applicant asserts. If there is a reasonably arguable case that for one, some, or all of the stated grounds that the applicant was deprived of his right to have a fair hearing of his case on the merits then leave to appeal should be granted.
- The first ground relates to the mention of the mediation proceedings. A passage at R 1-2:40-45 says:
The only thing I would add is that I’m really puzzled that this has gone to mediation and Mr White was not prepared to offer one red cent. And it’s, you know, dragged on for another four months to the hearing and it’s just quite puzzling. I believe we do not have – I believe we do have a good case. And it’s even to alluded to a lot of that in the mediation. But he still feels that he doesn’t want to give us a partial refund, which is extremely puzzling to me. (emphasis added)
- Section 83(1) of the QCAT Act renders inadmissible any evidence of anything said or done during the mediation for a proceeding. However, “evidence” in this tribunal has a broader, less technical, meaning than it does in regular courts. I take evidence to include information whether provided on oath or not. On that basis, section 83(1) was breached, and the applicant alleges knowingly breached.
- The applicant contends the revelation that it was discussed in mediation that the respondent had a strong case and that the applicant was not prepared to “offer one red cent” is likely to have had a prejudicial effect on the tribunal when assessing the matter.
- The question in the appeal, however, is whether or not the risk of prejudice to the applicant was unacceptable. The only way of assessing that is to see whether it had any relevant bearing on the facts in issue and whether it appeared to influence the tribunal or even be given any weight at all.
- Resolution of the dispute between these two parties essentially came down to the objective state and quality of an apartment. The applicant contends that the apartment advertised is the apartment more or less supplied, that any shortcomings such as it not being clean were remedied quickly, and no loss was caused. He did, however, offer to reduce a future tariff by 45 per cent as a sign of good faith because the respondent was complaining so persistently and threatening to go to the authorities such as the Office of Fair Trading.
- The respondent, on the other hand, says he did not get what he paid for and that he is entitled to a partial reduction of the amount he paid to compensate him for the inferior quality and the loss of amenity he went through on his holiday, and that a 45 per cent reduction for a future stay at similar accommodation run by the applicant was no good to him. If he was going to get a reduction in the tariff, it was for the stay he just had and did not enjoy, not for one that he may never take.
- The respondent also produced photographs as to the overall condition taken during the stay. At R 1-5:25 the tribunal found:
The applicant’s evidence as to the state of the accommodation is corroborated by photographs taken during the stay and, I find, by the offer of a substantial discount by the respondent at the end of his stay. I find, therefore, that the respondent did not comply with the terms of the contract. That was to provide a five star accommodation as described, and that the accommodation was not of the quality described.
- The tribunal obviously put significant weight on the accuracy of the photographs in preferring the respondent’s version over the applicant’s as more consistent with the objective evidence.
- The tribunal also mentioned the applicant’s settlement offer of a 45 per cent discount for a return stay. The applicant says he made that statement in a commercial context in order to settle a dispute with a guest and avoid any unpleasantness. He did not expect that it would be used by the tribunal as a yardstick to measure the respondent’s loss, especially when he was contending that the respondent suffered no loss. The applicant’s point is understandable, but on the other hand, the statement was made, in an attempt to settle a dispute before it escalated, openly to the other party, and was not stated to be without prejudice or confidential. It is a statement made by the applicant against financial interest. Therefore it is technically open to the tribunal to use it as an implied admission.
- I am not satisfied that the statement was given any weight. Tribunals are commonly given facts in the course of proceedings that are technically inadmissible and by training have learned to identify and ignore them. Notably there is no mention of the mediation in the tribunal’s reasoning as a persuasive factor.
- The second ground of appeal is that the hearing came on on short notice giving the applicant only one business day to prepare.
- He says that he was disadvantaged by this because he had understood that the respondent was going to amend his material and he had not heard anything more about it. He thought, therefore, that on Monday, he might be confronted with something unexpected. He says he was left in a state of confusion and uncertainty over the weekend about what he had to prepare for, and that that prejudiced him. As it turned out, he had all the material that the respondent was going to rely on, and there was no change to the respondent’s case that he had to meet in the end.
- His complaint is he did not know that he did not have to prepare for anything until very shortly before the hearing. He made this known to the tribunal at an early stage of the proceeding, and said at R 1-3:5:
I only just found out about this on Friday by chance by speaking to someone about this proceedings today. I was advised that Mr Golden may have been changing some of the material in the original application that he provided to the mediation. Can I – has anything been changed? Because I haven’t been – we haven’t received any confirmation of any material about this proceeding today.
Well, the material before the court is just the application which was filed on the 28th of October 2016 and it has some attachments from B to H. And that’s the only material that’s been filed apart from various applications to appear by telephone.
All right. So do you have all that material, sir?
I’ve got that material, yes.
All right. Well, that’s all I have.
- The matter then proceeded on that basis. It is clear that what the applicant was concerned about did not eventuate. He made no complaint of prejudice because material he thought might be sprung on him was not. He asked for no adjournment because he was underprepared. He just put the matter on record. I cannot see any logical basis for drawing an inference that the applicant was deprived of any opportunity he was entitled to by natural justice by not being told that he did not have to worry about preparing anything other than the filed material.
- The third ground is based on prejudice alleged to have resulted from the tribunal’s failure to consider or take into account written submissions filed by the applicant on the 6th of February 2017. The applicant said in the course of argument that this ground can and should be inferred from what the tribunal said at R 1-3:5-10 when speaking of the material filed by the applicant and whether any more had been lodged, saying that:
The material before the court is just the application which was filed on the 28th of October 2016. It has some attachments from B to H and that’s the only material that’s been filed apart from various applications to appear by telephone…
- Taken literally, that could be interpreted to suggest that the only material before the tribunal was the original application and attachments to it. Failure to identify any other material on the file could suggest there was none. However, the tribunal was referring to them in the context of answering a question by the applicant of whether the respondent had changed some of the material in the original application and whether any extra material had been filed. The tribunal was not addressing any question or issue about the applicant’s own material or other documents.
- Moreover, the minor civil dispute file would have had much more than just the nominated documents and if the applicant’s material was not there, the applicant would have been non-compliant with his obligation to at least file a response, if not written submissions, and the tribunal can be reasonably expected to have commented on it. I am therefore not satisfied that the failure to mention the applicant’s written submission of 6 February 2017 provides any logical basis for a strong enough inference that the submission was missing from the file, not seen, or not adequately considered by the tribunal.
- The applicant says that if his written submissions were not considered then the proceedings would lack balance, and if they had been read, they would have at least arguably persuaded the tribunal to make a different, and from his perspective better, decision. That would be true. But as I say, the facts are not strong enough to support the inference he needs to be drawn for that submission to be accepted.
- The fourth ground is that the tribunal is said to have wrongly given weight to the settlement offer of a 45 per cent discount for a future stay as the yardstick or hallmark of reasonableness of the quantum of damages. I have already dealt with this in terms of it being an implied admission of liability, but this point really goes to its value as an indicator of quantum.
- The respondent mentions the 45 per cent offer early in the proceedings at R 1-2:25 and then the applicant refers to it at R 1-3:45, explaining that it was made out of a gesture of goodwill. He also says that it was a lot more than what he would ever consider doing for a guest, but that the respondent was so persistent in his complaining and had started blackmailing and threatening to go to the Office of Fair Trading. At R 1-5:35, the tribunal says what has already been addressed; that is, that the applicant’s evidence as to the state of the apartment is corroborated by the photos and “by the offer of a substantial discount by the respondent at the end of the stay”.
- A little further on, the tribunal states:
The applicant seeks damages of $1125. That is, 45 per cent of the total cost. I find that that amount is reasonable in the circumstances, taking into account that that is the discount that was offered by the respondent for a return stay.
- On my reading, the discount was merely a metric used to cross-check the reasonableness of the figure that had already been reached according to ordinary compensatory principles. It was considered as an additional indicator that the figure found to be reasonable was so in the circumstances. While the applicant’s complaint is understandable because of the circumstances in which he explained he made it and the use to which the tribunal ultimately put it, at the end of the day, it was a matter for the tribunal to work out as best it could, with little material, what the reduced value of the apartment was and make a compensation order accordingly.
- Importantly, in this jurisdiction, the order has to be just and equitable as well as according to law. That gives a broad discretion in valuing loss. Assessing compensation is a discretionary process with no single correct answer. No one can say what a loss is actually worth to dollar point accuracy. These are things involving matters of degree and judgment. The same body of material can give rise to different, even contrary, answers equally as reasonable, neither of which is demonstrably wrong or manifestly or uniquely right. In those circumstances, it seems to me the damages award is within the range of possibilities open on the evidence, and there is no legal error.
- Overall, I am not satisfied that the applicant has demonstrated that he has a reasonably arguable case of error in need of correction. The purpose of the leave requirement is to ensure that the resources of the tribunal in conducting appeal proceedings are reserved for those where the outcome is more arguable and the chance of error seems more likely than the applicant has been able to demonstrate in this case.
- In those circumstances, the application for leave to appeal is refused.
- Published Case Name:
The Boutique Collection v Patrick Golden
- Shortened Case Name:
The Boutique Collection v Golden
 QCATA 129
17 Nov 2017