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Redcliffe Wholesale Cars Pty Ltd v Eastmond[2021] QCATA 121

Redcliffe Wholesale Cars Pty Ltd v Eastmond[2021] QCATA 121

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Redcliffe Wholesale Cars Pty Ltd v Eastmond [2021] QCATA 121

PARTIES:

redcliffe wholesale cars pty ltd

(appellant)

v

beverley eastmond

(respondent)

APPLICATION NO/S:

APL144-20

ORIGINATING APPLICATION NO/S:

MCDO 96/2019 (Townsville)

MATTER TYPE:

Appeals

DELIVERED ON:

5 October 2021

HEARING DATE:

30 September 2021

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

Leave to appeal is refused.  That means that the appeal fails.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN NO APPEAL LIES – where car not of acceptable quality was supplied in trade or commerce – where appellant did not attend original hearing – whether points not made to the hearing below could be argued on appeal – whether any reasonably arguable grounds of appeal

Australian Consumer Law, s 54, s 64

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 138

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 43

Summers v Repatriation Commission [2015] FCAFC 36

APPEARANCES &

REPRESENTATION:

 

Applicant:

Matthew Woods of Woods Prince Lawyers

Respondent:

Self-represented but did not attend hearing

REASONS FOR DECISION

  1. [1]
    This is an appeal from a decision made by a panel of Justices of the Peace in a claim about a defective car.  It is said that the panel made errors of fact and law and there ought to be a rehearing.  The appellant, Redcliffe Wholesale Cars Pty Ltd, is in some difficulty in the appeal because it did not attend the original hearing.
  2. [2]
    The claim brought by Beverley Eastmond was for compensation for repair costs when a car purchased from Redcliffe suffered a breakdown in the automatic transmission soon after purchase.  She claimed the net cost of the repairs after deduction of an amount she recovered from warranty insurers.  The panel made an order in her favour of $3,907.55 including the filing fee.
  3. [3]
    The reasons given by the panel for its decision were that the car was not of acceptable quality at the time of its supply because it was not fit for the purpose for which it was supplied and not free from defects, as required by the guarantee in section 54 of the Australian Consumer Law.

Grounds of appeal

  1. [4]
    One ground of appeal is that no reasons were given by the panel when making the order.[1]  This is incorrect as can be seen from the transcript of the hearing obtained by the Appeal Tribunal.  In the appeal hearing I read the panel’s reasons to those present.
  2. [5]
    The main grounds of appeal therefore reduce to these:[2]
    1. (a)
      Ms Eastmond was not the purchaser of the car and so there was no contractual duty owed to her and she had no right to bring the claim.
    2. (b)
      It was wrong on the evidence for the panel to find that there was any defect in the car at the time of the supply.  Ms Eastmond caused the defect herself by driving the car in the knowledge that there was a potential issue with it.
    3. (c)
      Clause 7(e) of the contract bars the claim.  It provided that ‘Customer has inspected the vehicle and confirms that the vehicle is ostensibly of merchantable quality and fit for the purpose of the Customer”.[3]
    4. (d)
      Ms Eastmond failed in her duty to mitigate her loss or was not otherwise entitled to the compensation ordered because: 
      1. she should have returned the car to Redcliffe for repairs; instead she exacerbated the defect herself by driving the car in the knowledge that there was a potential issue with it;
      2. she should have replaced the transmission with a second hand one which was readily available and much cheaper than a new one. 
    5. (e)
      She failed to account fully for payments made by warranty insurers.
  3. [6]
    Redcliffe did not attend the hearing.  Despite that, the panel decided to proceed to hear the claim in Redcliffe’s absence.  There is no appeal against that decision.
  4. [7]
    It is said in Redcliffe’s submissions that it did not have any notice of the claim or of the hearing.[4]  This issue was examined in the appeal hearing.  It is clear from the original minor civil dispute file that all correspondence from the tribunal, which included notices requiring the parties to attend compulsory mediation and also the hearing, were sent to Redcliffe’s correct business address.  In the light of this, I do not accept that Redcliffe knew nothing about the claim or did not have notice of the hearing.
  5. [8]
    In any case, the usual remedy if a party does not attend the hearing and has a reasonable excuse for not doing so, such as ignorance of the claim or the hearing date, is to apply for a reopening.[5]  Although there is a time limit for such an application, the time limit can be extended by the tribunal where it is fair to do so.  No such application was made.
  6. [9]
    A party which does not apply for a reopening could still appeal on the grounds that there was procedural unfairness because they did not have notice of the claim or of the hearing.  But this was not a ground of appeal.  The alleged non-notice of the claim and of the hearing was simply mentioned in passing in the appeal submissions.  In any case as I have found, Redcliffe did have notice of the claim and of the hearing.
  7. [10]
    This issue is of some importance in this appeal because all the grounds of appeal, other than the first part of ground (b) (which was for Ms Eastmond to prove) were not matters that the panel considered in the original hearing.  Instead, they are matters raised by Redcliffe for the first time in this appeal.
  8. [11]
    The question arises whether it is right to permit Redcliffe to argue any of these grounds of appeal bearing in mind it failed to attend the original hearing which is usually the correct forum for these points to be made.  It is necessary here to refer to the fact that this claim was brought on Form 1, that is to say as a ‘consumer claim’, and a respondent is not permitted to file a formal response to such a claim.[6]  A respondent to such a claim could however file evidence or written submissions,[7] and of course could attend the hearing and argue the points now made.
  9. [12]
    The Appeal Tribunal has a discretion whether to allow such new points to be made on appeal, and this would be decided based on fairness to the parties, expediency and whether it is in the interests of justice for it to be argued.[8]  The Appeal Tribunal would be less likely to allow a new point to be raised if it required new evidence to be heard.
  10. [13]
    In this respect it is noted that Redcliffe’s submissions on appeal do attempt to put fresh evidence before the Appeal Tribunal.  The fresh evidence concerns appeal ground (d)(ii) and attempts to show from an invoice and a quotation that a second hand automatic transmission for the car was readily available at the time the repairs were done and much cheaper than a new one.  And there is evidence of the total amount paid by the warranty insurers in an email from them in support of appeal ground (e).
  11. [14]
    The question arises whether the Appeal Tribunal may admit this evidence and take it into account the appeal.  In this respect in one of its submissions, Redcliffe reserved ‘the right to make Application for fresh evidence to be adduced at the hearing of this Appeal’.[9]  On 7 September 2020 the Appeal Tribunal gave directions in its standard form that if either party to the appeal wished to rely on fresh evidence then they would need formally to apply for leave to do so, with a copy of the fresh evidence, and with submissions about why the fresh evidence was not available to the tribunal below, why the fresh evidence was important and why it should be accepted.  In directions of 20 November 2020 the Appeal Tribunal confirmed that these directions about fresh evidence applied.  But Redcliffe did not make such an application. 
  12. [15]
    The restriction on allowing fresh evidence to be put before the Appeal Tribunal protects the appeal process from becoming a rehearing in cases where no error of the original decision makers can be shown.  If it were generally allowed, then each dispute would potentially require two hearings – the original hearing and an appeal hearing to see if the result remains the same upon better evidence.
  13. [16]
    There is no reason in this case to relax this restriction.  In the circumstances it would be wrong to have regard to the fresh evidence. 
  14. [17]
    At the appeal hearing it was submitted on Redcliffe’s behalf that the Appeal Tribunal should accept the fresh evidence anyway, or otherwise remit the matter for rehearing upon the fresh evidence, bearing in mind that Ms Eastmond also wished to give fresh evidence to support her case.  But having decided not to have regard to the fresh evidence as part of the appeal, it is not possible for there to be a rehearing unless it can be shown that the panel was in error.
  15. [18]
    Without any evidence showing that a second hand transmission was readily available and would be much cheaper than a new one, ground (d)(ii) would not seem to be arguable and accordingly ought not to be allowed as a new ground of appeal.
  16. [19]
    The other points made however, have a ready answer in this appeal and I propose to permit them to be argued and dealt with.
  17. [20]
    Starting with ground (a) (incorrect party) this is not reasonably arguable because it is clear from the evidence submitted by Ms Eastmond in the claim and her evidence in the original hearing that she was the contracting party.  She was the person with whom Redcliffe had contact at all times.  She negotiated the purchase, she paid for the car and she collected it and she drove it away.  It is true that the purchase documents were put in the name of someone else, but there was a reason for this known to Redcliffe at the time of the purchase which did not affect the identity of the true contracting party.
  18. [21]
    Ground (b) is not reasonably arguable.  The evidence given to the panel was that Ms Eastmond noticed symptoms caused by the defective transmission very soon after collecting the car.  Those symptoms continued and were diagnosed some 20 days later as being a defective automatic transmission.  The panel was therefore right to find that the defect was present at the time of the supply.  It is also clear from this that Ms Eastmond did not cause the fault.
  19. [22]
    Ground (c) is not reasonably arguable.  No such clause appears on any paperwork before the tribunal or Appeal Tribunal.  Even if it did, because of the provisions of section 64 of the Australian Consumer Law (Guarantees not to be excluded etc. by contract) it could not bar the claim.  The effect of such a clause would therefore be evidential only, and is in fact negated by the admitted fact that Ms Eastmond did not inspect the car at all before committing to the purchase.
  20. [23]
    In the original hearing Ms Eastmond gave evidence relevant to the point made in ground (d)(i).  She said that Redcliffe’s director was aware that she needed the car in order to make a journey from Brisbane to Townsville.  The director told her on the telephone that the car was in good condition and with no known problems.  After picking up the car and before her drive to Townsville, Ms Eastmond spoke to the director and told him about the sounds which the car was making and that she was considering whether or not to make the drive to Townsville after all.  She told him that she thought the fault was minor because it sounded to her like a fault with the air conditioning that she had heard before but she would monitor the sound and make a decision then.  She decided to do the drive based on two shorter driving trips.  There is no evidence that the director advised her not to drive to Townsville or asked her to bring the car in for an inspection.  In the circumstances it cannot be said that she acted unreasonably in driving to Townsville without taking it back to Redcliffe.  She was therefore not in breach of her duty to mitigate her loss.  There is no evidence that the drive to Townsville exacerbated the defect.  So ground (d)(i) is not reasonably arguable.
  21. [24]
    Ground (d)(ii) cannot be argued for reasons given earlier.
  22. [25]
    Ground (e) is incorrect.  The insurers paid $2,500 towards the transmission repair and Ms Eastmond reduced her claim by that amount.  In any case insurance payments generally do not reduce the amount of compensation which can be claimed.

Conclusion

  1. [26]
    None of the grounds of appeal are reasonably arguable and so it would be wrong to give leave to appeal, as would be required in appeals of this sort.  This means that the appeal fails.

Footnotes

[1]  Paragraph 11 of the submissions dated 16 July 2020.

[2]  These are extracted from a combination of the grounds stated in the application for leave to appeal or appeal, and from submissions dated 16 July 2020 and those received by the tribunal on 13 January 2021.

[3]  Paragraph 19 of the submissions dated 16 July 2020.

[4]  Paragraph 9 of the submissions received by the tribunal on 13 January 2021.

[5]  This would be under section 138 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

[6]  Rule 43 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) prohibits the filing of a formal response to such a claim.

[7]  Rule 43(2)(b).

[8] Summers v Repatriation Commission [2015] FCAFC 36.

[9]  Pararaph 11 of submissions received on 13 January 2021.

Close

Editorial Notes

  • Published Case Name:

    Redcliffe Wholesale Cars Pty Ltd v Eastmond

  • Shortened Case Name:

    Redcliffe Wholesale Cars Pty Ltd v Eastmond

  • MNC:

    [2021] QCATA 121

  • Court:

    QCATA

  • Judge(s):

    Member Gordon

  • Date:

    05 Oct 2021

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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