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Davey SG Pty Ltd v Welk QCATA 61
Davey SG Pty Ltd t/as Supergeek v Welk  QCATA 61
Davey SG Pty Ltd t/as Supergeek
Brian James Welk
On the papers
Senior Member Stilgoe OAM
22 May 2017
APPEAL – LEAVE TO APPEAL – TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – GUARANTEES, CONDITIONS AND WARRANTIES IN CONSUMER LEGISLATION – GUARANTEES, CONDITIONS AND WARRANTIES – where computer platform no longer supported – where computer company installed alternative solution – where consumer didn’t like alternative solution – where consumer paid for another company to reload original platform – where consumer did not pay for alternative solution – where consumer claimed cost of reinstalling original platform – where tribunal ordered compensation – whether tribunal erred – whether grounds for leave to appeal
APPEAL – LEAVE TO APPEAL – PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PROCEDURAL ASPECTS OF EVIDENCE – MAKING AVAILABLE PLANS, PHOTOGRAPHS, VIDEO OR AUDIO RECORDINGS – where tribunal did not accept recordings of telephone conversations – whether failure to provide procedural fairness – whether grounds for leave to appeal
Competition and Consumer Act 2010 (Cth) Sch 2 (‘Australian Consumer Law’) ss 61, 267
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3)(a)(i)
Pickering v McArthur  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
- In May 2016, Microsoft sent Brian Welk an email, telling him that the Windows Live 2012 email application would not be supported after June 2016. Mr Welk was advised that he would not be able to send or receive emails in Windows Live 2012, that he should switch to the mail app built to Windows 8.1 and Windows 10 or, if he was using Windows 7, upgrade to a newer version.
- Mr Welk referred that email to Davey SG Pty Ltd t/as Supergeek. Supergeek gave Mr Welk two options. He could upgrade to Windows 10 as suggested, or it could load another email program onto his computer. Mr Welk chose to have another program (Thunderbird) loaded onto his computer.
- Mr Welk didn’t like Thunderbird. He told the tribunal he didn’t receive any follow up assistance. He did not pay Supergeek’s invoice of $135.
- Eventually, he took his computer to an alternative computer company. That company, Time Out Computers, installed Windows live mail, set up an imap solution for his Hotmail accounts and deleted Thunderbird. It charged Mr Welk $198. Mr Welk was happy with this solution.
- Mr Welk filed a claim in the tribunal for $641 made up of $330 for his wasted time, $20 for petrol, $73.20 for a bank cheque and fees and reimbursement of the $198 he paid Time Out. The tribunal ordered that Supergeek pay Mr Welk $261.20.
- Supergeek 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. 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.
- Supergeek says the tribunal erred in not accepting:
- Recordings of a call Mr Welk made to the Supergeek customer centre;
- Supergeek’s CRM records showing a log of contact with Mr Welk;
- The internal email trail between Supergeek and Mr Welk.
- Supergeek also says that the tribunal misapplied s 267 of the Australian Consumer Law.
Did the tribunal err in refusing to accept Supergeek’s evidence?
- I read the transcript of the hearing carefully. Mr Davey, for Supergeek, did not offer the CRM records or the internal email records to the tribunal. He stated he had them and he told the tribunal what was contained in those records.
- The CRM records and the internal email records addressed whether or not Supergeek tried to address Mr Welk’s concerns. It was not relevant to the tribunal’s decision, which focussed on whether or not Supergeek’s initial work was satisfactory. The tribunal was not in error in failing to accept the evidence.
- Mr Davey did ask the tribunal if it would like to hear some recordings. The tribunal declined. The tribunal in its minor civil disputes jurisdiction has almost no capacity to receive electronic evidence. The evidence Mr Davey wanted the tribunal to hear related to whether or not Supergeek’s call centre was in the USA. It was not relevant to the tribunal’s decision. The tribunal was not in error.
Did the tribunal misapply s 267 of the Australian Consumer Law?
- The tribunal did not refer to the Australian Consumer Law in its reasons for decision. It found that, if Supergeek had not carried out incorrect work, Mr Welk would not have incurred additional fees.
- Section 267 of the Australian Consumer Law allows a person to take action against a supplier if the supplier breaches a guarantee under the Act. The only guarantee that could apply in this case is the guarantee as to fitness for a particular purpose.
- It is not clear from the tribunal’s decision what the ‘incorrect work’ Supergeek carried out was. The tribunal accepted that Mr Welk was told he had to upgrade to Windows 10 but that his computer would not be capable of running Windows 10.
- The tribunal accepted that Mr Welk was told that Windows 7 could not be reinstalled although there is, in fact, no evidence that Windows 7 was ever deleted. Supergeek’s invoice did not state that Windows 7 was deleted. Time Out’s invoice did not state that it reinstalled Windows 7 although it did state that it reinstalled Windows Live.
- The evidence is silent about whether Supergeek advised Mr Welk that Thunderbird would not transfer his emails. Mr Davey, for Supergeek, told the tribunal that Mr Welk’s problem was that he did not know how to send emails on Thunderbird and that he needed some technical advice about how to do that.
- And yet, the tribunal did not accept that Supergeek installed an acceptable solution. There was no evidence before the tribunal that Thunderbird was not fit for purpose. It was a solution that Mr Welk did not like, and for which he needed training, but that is not the test. Thunderbird did what Supergeek said it would do – it enables Mr Welk to access emails on his current platform. The evidence could not support a finding that Supergeek’s work was not fit for purpose.
- I accept that, if the tribunal found that Supergeek’s work was not fit for purpose, and it is not a major failure, s 267 of the Australian Consumer Law allows the tribunal to give Mr Welk the reasonable costs of having the failure remedied. It would, however, be an odd result if Mr Welk could recover Time Out’s costs when he did not pay Supergeek.
- The remedy for a major failure specifically refers to the reduction in value for the services below the price paid for the services. It is, therefore, reasonable to assume that the right to recover the costs of remedying the failure can only arise if the original supplier had been paid. If that interpretation is correct, Mr Welk’s damages, in any event, would be limited to the difference between the Time Out invoice and the Supergeek invoice, a difference of $63.
- The tribunal found that it could not compensate Mr Welk for his losses as a result of Supergeek’s failure to supply a service fit for purpose. That is not correct. If Mr Welk could demonstrate an actual loss or damage because of a failure to supply a service fit for purpose, and he could support that claim with evidence, he would be entitled to recover that loss. Mr Welk’s claim for $60 per hour ‘waiting time’ for the repair had to be supported by evidence that $60 per hour was a reasonable fee, and that he lost the opportunity to charge his time out at that rate. As he did not provide evidence to support those claims, the tribunal’s decision was correct.
- The tribunal correctly identified that it will not compensate a party for the costs of preparing documents for the claim or appearing at the tribunal.
- The tribunal was in error in finding that Supergeek was in breach of its obligations. Leave to appeal should be granted and the appeal allowed. The decision of 20 January 2017 is set aside and the tribunal proceeding should be dismissed. If Supergeek has paid any of the decision amount to Mr Welk, Mr Welk shall refund that amount to Supergeek within 14 days of order.
 QCAT Act, s 142(3)(a)(i).
Pickering v McArthur  QCA 294 at .
 Transcript page 1-7, lines 20 – 24.
 Transcript page 1-12, line 37.
Competition and Consumer Act 2010 (Cth) Sch 2 (‘Australian Consumer Law’) s 61.
 Transcript page 1-16, lines 29 – 32.
 Transcript page 1-16, lines 34 – 35.
 Transcript page 1-16, lines 35 – 36.
 Transcript page 1-16, lines 36 – 37.
 Transcript page 1-16, line 38.
 Transcript page 1-9, lines 2 – 5.
 Australian Consumer Law s 267(2)(b)(i).
 Ibid s 267(3).
- Published Case Name:
Davey SG Pty Ltd t/as Supergeek v Brian James Welk
- Shortened Case Name:
Davey SG Pty Ltd v Welk
 QCATA 61
Senior Member Stilgoe
22 May 2017