Xtreme Movers v Symonds[2018] QCATA 157

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Mr Symonds moved from Sydney to the Sunshine Coast in May 2017. He had to move his furniture and engaged Handy Home Removals (‘Handy’) to do the work.
2. [2]
   Handy quoted $2,500 for the work. He paid Handy a $300 deposit.
3. [3]
   Shortly before the work was to be done, Handy informed Mr Symonds that the job would be now done by Xtreme Movers (‘Xtreme’).
4. [4]
   Xtreme gave Mr Symonds a written quote of $2,125 to move his goods. Xtreme collected the goods from Dee Why in Sydney on 29 May 2017 in a truck which had come from Melbourne which was travelling back to Brisbane. They delivered them to his new Sunshine Coast address on 31 May 2017.
5. [5]
   Mr Symonds found the furniture had been fairly extensively damaged. He contacted Xtreme and they told him he could claim on their insurance. After some attempts to have a claim made on insurers, Mr Symonds filed a consumer dispute against Xtreme in the Tribunal claiming $5,000 for damaged goods plus his costs of filing.
6. [6]
   The matter was heard in the Tribunal on 15 December 2017 and the Tribunal ordered the respondent (sic) pay Mr Symonds $3,680.40 within 28 days.
7. [7]
   The respondents want to appeal that decision.
8. [8]
   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]
9. [9]
   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]
10. [10]
    An appeal is not an opportunity to have the dispute re-litigated generally because a party is dissatisfied with the outcome of the first hearing. In large part that that is what the respondents seek.
11. [11]
    Other than that attempt to have another hearing however, there does appear to be a ground of appeal discernible in the appellants’ material concerning the party to the contract of removal.
12. [12]
    Xtreme complains that the learned member found that Xtreme was not the contracting party with Mr Symonds, and yet found Xtreme responsible for damage for breach of contract with Handy.
13. [13]
    The learned Member said:

The facts that I am satisfied on are that Mr Symonds contracted with Handy Home removals to – for a price of $2,125 to – plus $325 deposit…^[3]

14. [14]
    Then the learned Member continued, after saying that the contract was subcontracted to Xtreme, that Mr Symonds:

… had a look online, as one does these days, and found that Xtreme Removers (sic) have a good reputation in the general marketplace, and although his contract was originally with Handy… he was satisfied if the job was to be done by Xtreme Movers.^[4]

15. [15]
    The learned member then went on to conclude that the goods were damaged because Xtreme did not use blankets and wraps to cushion the goods and:

I’m satisfied therefore that Xtreme Movers is responsible for the damage which occurred. I’m also satisfied that this was within our jurisdiction because this is a claim arising out of a contract – out of a contract between a consumer and a trader. The fact that it was subcontracted does not mean – that it doesn’t arise out of the original contract.

16. [16]
    The learned Member gave extempore reasons for decision immediately after the hearing. That must be borne in mind when considering the adequacy of the reasons for decision. Though perhaps poorly expressed, I understand the learned Member to be saying the following: there was an initial contract for the supply of removal services between Handy and Mr Symonds; Handy subcontracted out the work to Xtreme; Mr Symonds accepted the supply of the removal services from Xtreme after he checked their reputation online; Accordingly, it was Xtreme who supplied the removal services to Mr Symonds and those services were not rendered with due care and skill; Xtreme was responsible for the damage done to the goods because of that failure.
17. [17]
    That conclusion was open to the learned Member on the evidence before him. Indeed, it was open to the Member to conclude that there was in any case that Xtreme and Mr Symonds contracted directly. There was no dispute between the parties that Xtreme gave a quote for their work directly to Mr Symonds who accepted the price offered and indeed paid Xtreme based on the quote. In fact, from the evidence, it appears before Xtreme would allow the goods to be removed from its truck in Queensland, it required payment directly from Mr Symonds, not from Handy.
18. [18]
    I see no error on the part of the learned Member as submitted under this ground of complaint. It was open to the learned Member to find against Xtreme on a number of bases, contract, negligence and, under the Australian Consumer Law,^[5] guarantee as to due care and skill incorporated into the arrangement, because Xtreme supplied the removal services to Mr Symonds in the course of trade and commerce.^[6]
19. [19]
    Apart from that one discernible ground of appeal considered above, most of the material filed by Xtreme in the application for leave to appeal is submitted simply with a view to another rehearing. That is not to be countenanced on an application for leave to appeal or appeal.
20. [20]
    Xtreme also filed, without any application for leave to adduce fresh evidence, statements of evidence by the employees engaged to carry out the removal job. There is no explanation why that material was not available for tender to the learned Member at the hearing of the application in December 2017. It is too late to attempt to lead it now.
21. [21]
    The application for leave to appeal is refused.