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Misura v Harvey[2022] QCATA 108

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Misura v Harvey & Anor [2022] QCATA 108

PARTIES:

zoran misura

(applicant\appellant)

v

neil harvey and thomson family racing pty ltd

(respondent)

APPLICATION NO/S:

APL140-21

MATTER TYPE:

Appeals

DELIVERED ON:

20 July 2022

HEARING DATE:

6 May 2022

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

  1. Leave to appeal against Neil Harvey is granted.
  2. The decision of the Tribunal of 20 April 2021 is set aside.
  3. Neil Harvey must pay to the Applicant the sum of $828.00 by 23 September 2022
  4. Leave to appeal against Thompson Family Racing Pty Ltd is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – LEAVE TO APPEAL – CONTROL OVER PROCEEDINGS where the applicant purchased a second motor vehicle from Mr Harvey – where Thompson Family Racing Pty Ltd provided a safety certificate for the vehicle – where Mr Harvey removed the radio and speakers from the vehicle prior to its collection by the applicant – where tribunal found Mr Harvey was not a trader – whether any justiciable claim against Thompson Family Racing Pty Ltd – whether consideration of the whole of the definition of trader in schedule 3 – whether Mr Harvey a trader.

Queensland Civil and Administrative Tribunal Act ss 142(3)(a)(i) and Dictionary Schedule 3

Terera & Anor v Clifford [2017] QCA 181.

Bradlyn Nominees Pty Ltd v Saikowski [2012] QCATA 39.

C & k Home Investment Pty Ltd ATF v Sye & Anor [2022] QCATA 061

REPRESENTATION &

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

  1. [1]
    This is an appeal from a decision of the Tribunal in the minor civil disputes jurisdiction in relation to the sale of the motor vehicle for $1,000 by the Mr Harvey on behalf of an undisclosed principal to Mr Misura. The vehicle was a 2001 Kia Sportage. Mr Misura brought the claim because he contends that the vehicle was not roadworthy, the engine was overheating and that Mr Harvey removed the radio and speakers from the vehicle between when he agreed to buy it and when he collected it. It cost him $353 to replace the radio and speakers and this formed part of his claim.
  2. [2]
    The claim against Thompson Family Racing Pty Ltd (“Thompson”) was in relation to the safety certificate prepared by its agent Mr Yeomans, in order for the vehicle to be registered to Mr Misura. Mr Misura alleged that the safety certificate was dubious because the car was not roadworthy and was overheating. He sought orders that Thompson fix the car and make it roadworthy. This claim was dismissed because clearly this is not a remedy available to the Tribunal.
  3. [3]
    As this is an appeal from a decision in the minor civil disputes jurisdiction it is not an appeal as of right. Section 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides that in respect of a decision in a proceeding for a minor civil dispute an appeal may be made only if the party has obtained the appeal tribunal’s leave to appeal. Leave to appeal will usually only be granted when there is a reasonable argument that the decision was attended by error, or an appeal is necessary to correct a substantial injustice caused by the error.[1]. An application for leave to appeal is not simply an opportunity to reiterate the arguments made at the hearing below in the hope of obtaining a different outcome.[2] Put another way, it is not a rehearing on the merits of the matter that was before the primary decision maker.
  4. [4]
    After hearing from the parties, the learned adjudicator made specific findings of fact that firstly, there was a binding contract between Mr Misura and Mr Harvey, even though Mr Harvey contended he was acting as agent for the owner of the house he was renting, his landlord. She found that as the principal was not disclosed and therefore the law in relation to ‘undisclosed principal’ applied. Secondly, she found that Mr Harvey, who was in possession of the vehicle, removed the speakers and radio from the vehicle prior to Mr Misura collecting the vehicle after it was registered. In support of this latter finding the invoice for the vehicle, dated 7 November 2019, noted the sale was from Mr Harvey with an additional notation that the “car sold as is where is”. Both of these findings were open on the evidence. There is no basis upon which the Appeal Tribunal can interfere with these conclusions.
  5. [5]
    However, despite these findings the claim was dismissed because the learned adjudicator also found that Mr Harvey had only sold a few vehicles on behalf of his landlord in the time that he had been renting the property. This led to the conclusion that Mr Harvey was not a “trader” as defined in the Queensland Civil and Administrative Tribunal Act. In addition, the claim for compensation for the removal of the radio and speakers was essentially a claim for damages for conversion and not a debt or liquidated demand.
  6. [6]
    The Tribunal’s jurisdiction for minor civil disputes is set out in the definition in the QCAT Act. Under the definition of ‘minor civil dispute’[3] the Tribunal has jurisdiction to hear:
    1. (a)
      A claim to recover a debt or liquidated demand of money up to the prescribed amount; or
    2. (b)
      A claim arising out of a contract between a consumer and trader.
  7. [7]
    Any claim Mr Misura has in the circumstances of this case, is clearly one for damages for breach of contract and therefore does not fall within (a) as being a debt or liquidated demand. The term “debt or liquidated demand” was discussed in C & k Home Investment Pty Ltd ATF v Sye & Anor[4]:

A claim is `liquidated’ when it seeks an amount that does not require any exercise of judicial fact-finding or discretion to crystallise it, or to arrive at a definite finding of quantum. If any assessment is needed, it must be by a process of simple mathematical calculation, without any input of judicial decision-making.

  1. [8]
    Even though the evidence established, and the Tribunal found, that Mr Misura’s loss was a specific sum of $353.00 that does not transform the claim to a debt or liquidated demand.
  2. [9]
    The next question is whether the transaction falls within (b) being a contract between a “consumer and trader”.  The definition of a trader:
  1. (a)
     means a person who in trade or commerce—
  1. (i)
     carries on a business of supplying goods or providing services; or
  1. (ii)
     regularly holds himself, herself or itself out as ready to supply goods or to provide services of a similar nature; and
  1. [10]
    Having regard to the evidence that Mr Harvey only occasionally sold cars for his landlord the learned adjudicator found he was not carrying on a business of supplying goods, such as second hand motor vehicles. Therefore (a)(i) did not apply to Mr Harvey’s situation. In respect of (a)(ii) given that he only sold a limited number of cars she found that Mr Harvey did not fall within the definition.
  2. [11]
    Despite that finding, the evidence demonstrates that Mr Harvey clearly had a system in place for the sale of second-hand vehicles. A car would be purchased by his landlord at the motor auctions then delivered to his residence, or he would collect it. His evidence was:

Member: and it was your car

Mr Harvey: No, it was actually my landlord. He goes to the car auction and buys cars, brings them back to me to sell.[5]

  1. [12]
    On this occasion however, Mr Harvey was himself at the auction and drove the car to his residence[6]. He would put a for sale sign on the car, he would arrange for a safety certificate to be supplied by Mr Yeomans, prepare an invoice for the buyer and then take the money for the vehicle and presumably account to the landlord. The regularity would depend, one can assume, on when the landlord or Mr Harvey could pick up a suitable car for sale, at the auctions at the right price, as occurred here. Importantly, he represented to the general public, and Mr Misura, that he was the seller of the car, when in fact he contends it wasn’t his car to sell. In other words, it was not a one-off private sale.
  2. [13]
    The obvious conclusion reached by reference to the system in place as to how the vehicles were bought and sold is that Mr Harvey held himself out as a person ready to sell cars when they were supplied to him. Unfortunately, the learned adjudicator focused on the regularity of the sale of the vehicles as opposed to the balance of the definition and how Mr Harvey went about the business of selling cars. When the definition is considered as a whole, and then applied to Mr Harvey’s business model, the Tribunal ought to have found that he was a trader.  It follows then upon such a finding the selling of the vehicle to Mr Misura fell within the definition of minor civil dispute giving the Tribunal jurisdiction to determine the claim.
  3. [14]
    The claim made included other heads of damage of costs sought to be recovered, e.g., registration costs and legal costs. Mr Misura could have, but chose not to, have the vehicle independently checked by a mechanic or even the RACQ to determine its mechanical condition. Therefore, the conclusion that the contract was for the purchase of a vehicle “as is where is”, confines his damages to the cost of replacement of the radio and speaker. Mr Harvey was bound to supply the whole vehicle as inspected with the radio and speakers included. By not doing so he breached the contract and the damages that flow, reasonably, are the cost to put the vehicle in the condition it ought to have been on handover.
  4. [15]
    Given the finding of fact that Mr Harvey was responsible for the removal of the radio and speakers and the claim of $353 seems a reasonable assessment of that loss. There will be an order that Mr Harvey pay this sum to Mr Misura as well as the filing fee for the original application ($123.00) and the appeal ($353.00) in the sum of $828.00. Legal costs are generally not recoverable under QCAT Act[7]. I see no reason to depart from the general rule.
  5. [16]
    The appeal in respect of the claim against Thompson Family Racing will be dismissed.
  6. [17]
    As the appeal against Mr Harvey turns on a question of law there will be leave to appeal. The order of the Appeal Tribunal will be that the decision of the Tribunal dated dismissing the claim is set aside and in lieu thereof there will be an order that Mr Harvey pay to Mr Misura the sum of $828.00 by 23 September 2022.

Footnotes

[1] Terera & Anor v Clifford [2017] QCA 181.

[2] Bradlyn Nominees Pty Ltd v Saikowski [2012] QCATA 39.

[3]  QCAT Act Sch 3 Dictionary.

[4]  [2022] QCATA 061 and the case cited therein.

[5]  Transcript page 13 line 10.

[6]  Ibid line 43.

[7]  Section 100.

Close

Editorial Notes

  • Published Case Name:

    Misura v Harvey & Anor

  • Shortened Case Name:

    Misura v Harvey

  • MNC:

    [2022] QCATA 108

  • Court:

    QCATA

  • Judge(s):

    Member Richard Oliver

  • Date:

    20 Jul 2022

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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