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  4. Morgan Mac Lawyers Pty Ltd v Wei Guo as Trustee for Guo's Family Trust t/as Banner Online - [2022] QCATA 160

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Morgan Mac Lawyers Pty Ltd v Wei Guo as Trustee for Guo's Family Trust t/as Banner Online[2022] QCATA 160

Morgan Mac Lawyers Pty Ltd v Wei Guo as Trustee for Guo's Family Trust t/as Banner Online[2022] QCATA 160

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Morgan Mac Lawyers Pty Ltd v Wei Guo as Trustee for Guo’s Family Trust t/as Banner Online [2022] QCATA 160

PARTIES:

Morgan Mac Lawyers Pty Ltd

(appellant)

V

wei guo as trustee for guo’s family trust trading as banner online

(respondent)

APPLICATION NO:

APL063-22

ORIGINATING APPLICATION NO:

MCDO624 of 2021

MATTER TYPE:

Appeals

DELIVERED ON:

28 October 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member WA Isdale

ORDERS:

  1. Leave to appeal is granted.
  2. The appeal is dismissed.
  3. The Adjudicator’s decision dismissing the application is confirmed.
  4. The application for costs is dismissed.

CATCHWORDS:

APPEAL – GENERAL PRINCIPLES – LEAVE TO APPEAL – APPEALS BY WAY OF REHEARING – where respondent agreed to expeditiously supply goods to the appellant – where the goods were not received in time – whether the respondent is liable for the late delivery of the goods

Queensland Civil and Administrative Act 2009 s 32

Peter Pershouse v Kydren Holdings Pty Ltd [2022] QCA 179

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]
    The applicant seeks leave to appeal from a decision of an Adjudicator dismissing its claim for a refund of $731.74 paid to the respondent for the supply of two advertising banners intended for use at a trade show. A filing fee of $70.45 is also sought, as are the costs of the appeal, should leave be granted.
  2. [2]
    The claim was heard on 09 February 2022 and the transcript records a duration of 23 minutes, which includes the decision given ex tempore.
  3. [3]
    The applicant was there represented by a solicitor employed by the applicant, and the respondent by Mr Guo.
  4. [4]
    The applicant’s case was focused on the affidavit of Ms Amie Mac, a director of the applicant. In it, Ms Mac stated that, on the afternoon of 21 May 2021, she telephoned a person called “Wei” and informed him that banners were needed for a trade show on 27 May 2021. She states that she was informed that if the fee for urgent work was paid, the banners would be produced on the same day and would be received by Monday 24 May 2021 or, at the latest, 25 May.
  5. [5]
    Ms Mac states that she relied on this and placed an online order that generated an online tax invoice which she paid by electronic funds transfer to the respondent’s bank. This all happened between 2 and 3:30pm.
  6. [6]
    The banners did not arrive until 12:30pm on 27 May 2021. The trade show started at 7am and the applicant did not have the banners for it as required.
  7. [7]
    Ms Mac states that the label on the box delivered showed it was collected from the respondent on 25 May 2021.
  8. [8]
    The respondent pointed out that the actual order was made using their online form. The fastest means of delivery was not selected, and there is a notice that the respondent is not responsible for delays by the courier.
  9. [9]
    The respondent did not accept that he was informed that the banners were for a trade show.
  10. [10]
    The respondent pointed out that the artwork supplied by the applicant needed to be changed as it was not suitable for production, being incorrectly sized and blurry.
  11. [11]
    The respondent offered to remedy this and, at 3:48pm on 21 May 2021, issued a second invoice, this being for $77 for the artwork. It was paid.
  12. [12]
    The artwork was approved at 4:33pm on that day and production started at 4:36pm. The submissions for the respondent state that production was completed at 6:29pm on 21 May 2021. This was a Friday.
  13. [13]
    The next time the courier could collect the parcel was Monday, 24 May 2021.
  14. [14]
    The respondent’s material states that the courier-tracking website shows that the order was picked up at 1:48pm on 24 May 2021 with delivery estimated to be on 26 May 2021, within the time required by the applicant. The tribunal prefers this very specific and detailed evidence in preference to the label on the box. It is the carrier’s material which may be inconsistent and the date on the label, although in a block commencing with “From”, does not specifically state when it was collected, contrary to the specific time recorded on the website, which the tribunal accepts as more persuasive for that reason.
  15. [15]
    The delay, the respondent says, was caused by the courier, a possibility which their invoice refers to and emphasises.
  16. [16]
    The invoice for the artwork provides an example, as follows:

Morgan Mac Lawyers Pty Ltd v Wei Guo as Trustee for Guo's Family Trust t/as Banner Online [2022] QCATA 160

  1. [17]
    While Ms Mac states in her affidavit that all the events she refers to happened between 2 and 3:30pm, Mr Guo states that she called about 12pm and placed the online order at 2:44:32pm Australian Eastern Standard Time. This time is shown on Tax Invoice 210521144432 for the two banners.
  2. [18]
    The respondent points out that the received artwork was only approved at 4:33pm on 21 May 2021. Production started at 4:36pm and finished at 6:29pm that day.
  3. [19]
    The Adjudicator noted that the applicant did not choose the fastest, and more costly, expedited delivery but chose to rely on the delivery method which was estimated to, but did not, meet the required delivery time.
  4. [20]
    It is not necessary for present purposes to resolve the matter of whether the business interactions started at about 2pm or about 12pm; recollections may differ, but it is of no moment.
  5. [21]
    The applicant, in view of its choice not to select the option of overnight air express, found itself in the situation warned about on the artwork invoice and the online terms and conditions.
  6. [22]
    Accordingly, the Adjudicator dismissed the claim.
  7. [23]
    The applicant has provided seven grounds of appeal. They all refer to errors said to be made by the Adjudicator in findings, failure to take into account or to give sufficient weight to material, ignoring evidence and failing to decide what ought to have been decided.
  8. [24]
    It is unnecessary, and unhelpful, to descend into a minute examination of the grounds. There is no contradictory submission in respect of them from the respondent, but that is not determinative. In view of the nature of the jurisdiction being exercised, justice will be best served by granting leave to appeal and engaging directly with the evidence, which will allow a review in the manner required by the jurisdiction conferred. Proceeding this way will not, in the circumstances of this case, result in any oppression of the respondent.[1] Leave is therefore granted and the applicant is now referred to as the appellant.
  9. [25]
    As has been discussed, the contract was for delivery of the specified items by the specified time. There is no complaint that the required items were not delivered or were not as specified and there is no suggestion that they were rejected or returned. It appears that the appellant has retained them.
  10. [26]
    The evidence is that the banners were made on the same day as they were ordered, the fee for that having been paid.
  11. [27]
    The invoice makes clear the limitation of liability of the respondent. The appellant, by choosing, and paying for, “Road Express” shipping did so in the light of the limited responsibility for that, this being part of the contract. The contract, in its written form, came after the verbal discussion about delivery time. There is no inconsistency in this aspect requiring resolution as the evidence shows dispatch at a time when delivery by the day before the trade show was able to be rationally expected, all else being equal. However, due to the courier’s operations, delivery was not until hours after the trade show began. This situation was clearly within the warning that formed part of the contract. The appellant chose to proceed in the face of the warning and accepted the risk of what actually occurred. There was no obligation on the respondent to further caution the appellant in relation to the risk. It provided the necessary caution and the means to deal with the risk by selecting overnight air express.
  12. [28]
    An examination of the evidence provided in this matter, approached as a rehearing and for the reasons which have been provided, requires that:
    1. (a)
      leave to appeal should be granted
    2. (b)
      the appeal should be dismissed
    3. (c)
      the Adjudicator’s decision dismissing the application should be confirmed
    4. (d)
      the application for costs should follow the event and also be dismissed.

ORDERS

  1. Leave to appeal is granted.
  2. The appeal is dismissed.
  3. The Adjudicator’s decision dismissing the application is confirmed.
  4. The application for costs is dismissed.

Footnotes

[1] C.f. Peter Pershouse v Kydren Holdings Pty Ltd [2022] QCA 179, 6.

Close

Editorial Notes

  • Published Case Name:

    Morgan Mac Lawyers Pty Ltd v Wei Guo as Trustee for Guo's Family Trust t/as Banner Online

  • Shortened Case Name:

    Morgan Mac Lawyers Pty Ltd v Wei Guo as Trustee for Guo's Family Trust t/as Banner Online

  • MNC:

    [2022] QCATA 160

  • Court:

    QCATA

  • Judge(s):

    Member WA Isdale

  • Date:

    28 Oct 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
Pershouse v Kydren Holdings Pty Ltd [2022] QCA 179
2 citations
Jump To
Cite 1 - [2022] QCA 179
Cite 2 - [2022] QCA 179

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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