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Stoker v Chief Executive, Department of Justice and Attorney-General[2022] QCATA 133

Stoker v Chief Executive, Department of Justice and Attorney-General[2022] QCATA 133

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Stoker & anor v Chief Executive, Department of Justice and Attorney-General & anor [2022] QCATA 133

PARTIES:

kerry michael stoker

wendy lorraine vickers

(applicant/appellant)

v

chief exceutive, office of fair trading, department of justice and attorney general

(First respondent)

brendan joseph saggers

(Second respondent)

andrea therese saggers

(Third respondent)

glEn james wishart

(Fourth respondent)

APPLICATION NO/S:

APL001-21

ORIGINATING APPLICATION NO/S:

GAR344-19

MATTER TYPE:

Appeals

DELIVERED ON:

29 August 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Traves

ORDERS:

  1. The application to rely on fresh evidence made by the applicants is refused.
  2. Leave to appeal is refused.

CATCHWORDS:

APPEAL – TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – MOTOR DEALERS LEGISLATION – dealer – where applicants claimed two separate misrepresentations by dealer had occurred – where Tribunal found no ‘claimable event’ – where Tribunal found no relevant financial loss established in any event – whether leave to appeal should be granted

Agents Financial Administration Act 2014 (Qld), s 82

Motor Dealers and Chattels Auctioneers Act 2014 (Qld), s 216

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142, s 146, s 147

Collyer v Grays (NSW) Pty Ltd [2022] QCATA 80

Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177

APPEARANCES & REPRESENTATION:

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]
    On 4 January 2021 the applicants filed an application for leave to appeal or appeal the decision of the Tribunal of 24 November 2020 which confirmed the decision of the first respondent to reject the applicants’ claim on the Claim Fund. The claim arose from the applicants’ purchase of a second hand caravan from BJ Saggers Investments Pty Ltd (in liq) who was at the time a licensed motor dealer.
  2. [2]
    On 10 March 2022 the liquidator of BJ Saggers Investments Pty Ltd made an application to have the company removed from the proceedings. The application was supported by the first respondent. On 14 June 2022 the Tribunal directed that BJ Saggers Investments Pty Ltd (in liq) be removed from the proceeding.

Grounds of appeal

  1. [3]
    The applicants rely on the following grounds of appeal:
    1. (i)
      The Tribunal made an error in finding that the applicants’ expectation of what an “inspection” would entail was ‘unrealistic’.
    2. (ii)
      The Tribunal erred in finding that an ‘inspection’ had occurred based on the available evidence. In particular, the Tribunal erred in relying on the Service Tax Invoice as evidence that a workshop inspection occurred, particularly in circumstances where the applicants were unable to cross examine the third, fourth and fifth respondents on the issue.
    3. (iii)
      The Tribunal made an error in failing to apply s 216(4) of the Motor Dealers and Chattel Auctioneers Act 2014 (Qld) (MDA).
    4. (iv)
      The Tribunal made an error in failing to find there had been a breach of s 216(7) of the MDA in circumstances where the applicants were not informed prior to 16 December 2017 that the caravan was a “repairable write off” and had been subsequently repaired.

The hearing below

  1. [4]
    To better understand the grounds of appeal it is necessary to briefly set out the background to the dispute and the findings made by the Tribunal at first instance.
  2. [5]
    The applicants inspected a used caravan they were interested in purchasing on 16 December 2017 at a storage yard used by the vendors, BJ Saggers Investments Pty Ltd (in liq).
  3. [6]
    The applicants agreed to purchase the caravan and paid a $4 000 deposit that day. The sale was subject to the vendor including a new annex valued at $2 700, for an all inclusive price of $40 000. Delivery of the caravan was to take place after the annex was manufactured. The applicants were advised at the time of signing the contract that the caravan was sold without warranty.
  4. [7]
    On 25 January 2018 the applicants attended to take delivery of the caravan and paid the balance of the purchase price, being the sum of $36 000. The applicants gave evidence that the parties signed a second contract at that time reflecting the contract price in full.
  5. [8]
    The parties dispute related to what was said by Mr Wishart to the applicants prior to the contract being entered into on 16 December 2017 and on 25 January 2018, just prior to them paying the balance of the purchase price and, presumably, prior to signing the second contract.
  6. [9]
    The applicants relied on two representations they said were made to them by Mr Wishart:
    1. (a)
      on 16 December 2017 during their inspection of the caravan that it would be “workshop inspected”; and
    2. (b)
      on 25 January 2018, prior to paying the balance of the purchase price, when they were informed the caravan was a “repairable write off” but were not told that this would affect the resale value.
  7. [10]
    Mr Wishart denied having misled the applicants on either occasion. He said the caravan did undergo an inspection and that parts were replaced. In relation to the second representation, Mr Wishart said that the applicants were given an opportunity to cancel the purchase and have their deposit refunded but that they elected to proceed. Mr Wishart denies his omission to tell the applicants about the effect of “repairable write off” on resale value was a representation by omission.
  8. [11]
    The Tribunal found:
  1. A ‘workshop inspection’ or ‘inspection’ was promised.
  2. A workshop inspection was carried out.
  3. There was no misrepresentation made regarding an inspection taking place and therefore no breach of s 216 of the MDA and no ‘claimable event’.
  4. There was no discussion of resale value consequent upon the disclosure that the caravan was a “repairable write off”.
  5. There was no obligation on the salesperson to advise the applicants regarding resale value.
  6. In any event, the applicants have not established that they suffered financial loss resulting from any representation by omission by the salesperson.

Leave to appeal

  1. [12]
    An appeal to the Appeal Tribunal on a question of law is as of right. An appeal on a question of fact or mixed law and fact requires the leave of the Appeal Tribunal. The appeal is by way of rehearing. The nature of the re-hearing has been discussed in a number of cases.
  2. [13]
    The relevant principles to be applied in determining whether to grant leave to appeal are: is there a reasonably arguable case of error in the primary decision; is there a reasonable prospect that the applicant will obtain substantive relief; is leave necessary to correct a substantial injustice to the applicant caused by some error; is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?

Application to adduce fresh evidence

  1. [14]
    On 23 May 2021 the applicants applied for leave to rely upon the following fresh evidence:
    1. (a)
      an invoice for $307.00 from Gas Spark for replacement of a thermocouple and tube; and
    2. (b)
      a valuation from QMV of $29 500 for the caravan dated 15 May 2021.
  2. [15]
    The Appeal Tribunal made directions that any applications for fresh evidence were to be determined together with the application for leave to appeal or appeal.[1]
  3. [16]
    It is settled in the Tribunal that the Appeal Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, for leave to be granted, the Tribunal must be satisfied:
    1. (a)
      the evidence could not have been obtained with reasonable diligence for use at the trial;
    2. (b)
      the evidence, if allowed, would probably have an important impact on the result of the case (although it need not be demonstrated that it would be decisive); and
    3. (c)
      that the evidence is credible though it need not be incontrovertible.[2]
  4. [17]
    The invoice relating to the work performed by Gas Spark occurred 2 years and 10 months after the applicants took possession of the caravan. It is not relevant, in my view, to the issues in this appeal.
  5. [18]
    The applicants relied on a valuation in the Tribunal hearing at first instance. The valuation was by QMV dated 17 May 2020 after an inspection on 14 May 2020.
  6. [19]
    A valuation obtained, again by QMV dated 15 May 2021 following an inspection on 10 May 2021 is 12months older than the first valuation. During that time the applicants have been using the caravan. The second valuation is of little to no relevance and the applicants have not demonstrated that the evidence on which the second valuation was based could not have been obtained with reasonable diligence.
  7. [20]
    In these circumstances, the application to rely on fresh evidence is refused.

Consideration

  1. [21]
    I turn to consider each of the grounds of appeal.

Grounds One, Two and Three

  1. [22]
    I will consider grounds one, two and three together.
  2. [23]
    The applicants in effect submit that they were promised a ‘workshop inspection’ and their caravan did not receive one. The applicants submit that the Tribunal made an error in finding that their expectation of what an “inspection” entailed was “unrealistic”. They submit that the service tax invoice dated 25 January 2018 is not evidence that such an inspection took place and that the Tribunal was in error in relying on that as evidence it had occurred. Further, it is submitted, the Tribunal was in error in giving any weight to the service tax invoice in circumstances where the third, fourth and fifth respondents did not appear at the Hearing and were unable to be cross examined.
  3. [24]
    The respondents submit that the test of whether a representation is misleading is an objective test and is not to be determined by the interpretation placed on the representation by the representee. Mr Stoker gave evidence, the respondents submit, that Mr Wishart did not say what he meant by “workshop inspected” and further, that the evidence accepted by the Member showed the caravan had been inspected pre delivery.
  4. [25]
    Section 216 of the MDA provides:

216 FALSE REPRESENTATIONS ABOUT GOODS

  1. (1)
    A licensee or motor salesperson must not represent in any way to someone else anything that is false or misleading about the sale or auction of goods.

Penalty—

Maximum penalty—540 penalty units.

  1. (2)
    Without limiting subsection (1) , a representation is taken, for the subsection, to be false or misleading if it would reasonably tend to lead to a belief in the existence of a state of affairs that does not in fact exist, whether or not the representation indicates that state of affairs does exist.
  1. (3)
    Also, if a person makes a representation about a matter and the person does not have reasonable grounds for making the representation, the representation is taken to be misleading.
  1. (4)
    The onus of establishing that the person had reasonable grounds for making the representation is on the person.
  1. (5)
    It is not a defence in a proceeding for a contravention of subsection (1) for the defendant to prove that an agreement with the person was terminated or that the person did not enter into an agreement because of the representation.
  1. (6)
    This section does not limit another Act or law about false or misleading representations.

Note—

See, for example, the Australian Consumer Law, section 29 .

  1. (7)
    In this section—

"false or misleading" , in relation to a representation, includes the wilful concealment of a material fact in the representation.

Note—

A person may make a claim, under the Administration Act, against the fund if the person suffers financial loss because of a contravention of this section.

  1. [26]
    The representation that the caravan would undergo a ‘workshop inspection’ was a representation with respect to a future matter. It was not a representation about an existing fact. A representation about a future matter will be misleading if, at the time it was made, the person making the representation did not have reasonable grounds for making it: s 216(3). The onus of establishing that the person had reasonable grounds for making the representation is on the person, here on Mr Wishart.[3]
  2. [27]
    There is no evidence that at the time of representing that a workshop inspection would take place that Mr Wishart did not have reasonable grounds for saying that it would. Moreover, the Member found that an inspection took place. Putting aside for the moment what, objectively, the representation meant, the Member was evidently satisfied that the inspection Mr Wishart understood and intended would take place did in fact occur. It follows that there was no misrepresentation of the nature complained of by the applicants.
  3. [28]
    That is enough to dispose of grounds 1 and 2 of the appeal.
  4. [29]
    In any event, I find no error in the learned Member’s finding or reasoning in relation to the meaning of the representation.
  5. [30]
    The test of what was conveyed by “workshop inspection” is based on what a reasonable person would think it meant,[4] which does not necessarily accord with what the applicants understood the words to mean. To determine whether the representation was misleading it is also necessary to consider the statement in context.
  6. [31]
    The Tribunal found that an inspection did take place. The Tribunal relied on an invoice dated 25 January 2018 which said:
    1. (a)
      Pre delivery labour: $550.00
    2. (b)
      Replacement parts – D Shackles, 12V T Ritar 7.2, Skin, 12pin trailer plug, Milenco Mirror Grand Aero Pair: $487.61
    3. (c)
      Sublet – gas cert. rwc: $230.00
    4. (d)
      Petrols, Oils, Lubricants, Supplies – Gas bottle refill, spare tyre cover, workshop consumables: $167.50.
  7. [32]
    The applicants relied on evidence of repairs they were required to do to the caravan in February, March, April and August of 2018 including to the water hose, fridge control and hot water system element as evidence that an inspection was not conducted. 
  8. [33]
    The learned Member was entitled to rely on Mr Wishart’s evidence and the evidence of the invoice. I find no error in the Tribunal so doing. The invoice shows that some work was done on the caravan, involving ‘workshop consumables’ being supplied. The labour component was $550.00 which suggests that at least 10 hours was spent inspecting the caravan and undertaking necessary repairs.
  9. [34]
    I also note the evidence of the applicants that they were contacted by Mr Wishart to ascertain what type of electrical plug was fitted to the tow vehicle. Further, that upon arrival on 25 January, the applicants had to wait so that a new awning could be fitted, given it had been discovered that the one originally supplied with the caravan had perished.
  10. [35]
    The evidence of the repairs to the caravan after the purchase is not sufficient to justify a different conclusion.
  11. [36]
    On the basis of the above, I find that it was reasonably open for the Tribunal to have found that an inspection occurred.
  12. [37]
    I also find that no error was made by the Tribunal in concluding that the inspection performed was consistent with what could reasonably have been expected by the representation made by Mr Wishart. The representation that a workshop inspection would be undertaken was made in the context where the applicants were shown the caravan when it was not connected to power or water. In those circumstances, in my view, the representation was intended to convey, and did objectively convey, that the caravan would be inspected to ensure it was roadworthy when delivered and that the electrics, water, gas stove, fridge, air con and lights worked. I do not accept that the representation, objectively, conveyed more than that. The representation must also be viewed in the context in which it was made, including the fact of it being the sale of a second hand caravan.
  13. [38]
    I find no error in the learned Member’s conclusion that, as understood by a reasonable person, “workshop inspection” meant an inspection of the nature in fact carried out. Moreover, for the reasons above, there were in my view reasonable grounds for the representation made by Mr Wishart.
  14. [39]
    Accordingly, in my view, there is no merit in grounds one, two and three.

Ground Four

  1. [40]
    The applicants submit by ground four that it was an error for the Tribunal not to find s 216(7) of the MDA had been breached in relation to respondents’ omission to inform them prior to 16 December 2017 that the caravan was a “repairable write off”.
  2. [41]
    The learned Member made the following findings (at [34]):

In what appeared to be a very honest action by the salesperson and their company the applicants were advised as soon as the salesperson found out about the status of the vehicle. It would appear from all the surrounding circumstances, this is not disputed or contradicted by the applicants, that they had a choice about whether they went ahead with the sale and that they very clearly chose to go ahead with the sale. The buyers made a conscious decision to continue with the contract and have not established that their claimed financial loss resulted from any representations by omission by the agent/salesperson.

  1. [42]
    These factual findings are not the subject of appeal. They demonstrate that, even had there been a misrepresentation of the nature complained of (which I do not accept), it was not causative of loss. The applicants were given the opportunity on 25 January 2018 to terminate the contract but elected to proceed notwithstanding that by then they knew the caravan was a “repairable write off”.
  2. [43]
    Accordingly, I find ground four has no merit.

Conclusion

  1. [44]
    In view of my findings in relation to each of the grounds of appeal, leave to appeal is refused.
  2. [45]
    I order accordingly.

Footnotes

[1]Appeal Tribunal Directions dated 9 March 2021, direction 5.

[2]Nadalini v RJW Developments Pty Ltd [2013] QCATA 23 at [15].

[3]MDA, s 216(4).

[4]Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 202 to 203.

Close

Editorial Notes

  • Published Case Name:

    Stoker & anor v Chief Executive, Department of Justice and Attorney-General & anor

  • Shortened Case Name:

    Stoker v Chief Executive, Department of Justice and Attorney-General

  • MNC:

    [2022] QCATA 133

  • Court:

    QCATA

  • Judge(s):

    Member Traves

  • Date:

    29 Aug 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Collyer v Grays (NSW) Pty Ltd [2022] QCATA 80
1 citation
Jump To
Cite 1 - [2022] QCATA 80
Nadalini v RJW Developments Pty Ltd [2013] QCATA 23
1 citation
Jump To
Cite 1 - [2013] QCATA 23
Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 A.L.R 177
2 citations
Jump To
Cite 1 - (1982) 42 A.L.R 177
Cite 2 - (1982) 42 A.L.R 177

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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