Tandayag v Motor Hospital Qld Pty Ltd
[2023] QCATA 149
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- Tandayag v Motor Hospital Qld Pty Ltd[2023] QCATA 149
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Tandayag v Motor Hospital Qld Pty Ltd[2023] QCATA 149
Tandayag v Motor Hospital Qld Pty Ltd[2023] QCATA 149
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Tandayag v Motor Hospital Qld Pty Ltd [2023] QCATA 149 |
PARTIES: | LADY-ANNE TANDAYAG (applicant/appellant) v MOTOR HOSPITAL QLD PTY LTD (respondent) |
APPLICATION NO/S: | APL249-22 |
ORIGINATING APPLICATION NO/S: | MCDO 46-22 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 30 October 2023 |
HEARD AT: | Brisbane |
DECISION OF: | Member Goodman |
ORDERS: |
|
CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where adjudicator preferred the evidence of one party – where the evidence was capable of supporting the conclusions reached – where similar fact evidence claimed Queensland Civil and Administrative Tribunal Act 2009 s 142(3) Cougar Air Pty Ltd v Sankarayya [2015] QCATA 98 D F Lyons Pty Ltd v. Commonwealth Bank of Australia (1991) 28 FCR 597 Morris v Warrian & Anor [2003] QDC 009 Pickering v McArthur [2005] QCA 294 |
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
BACKGROUND
- [1]The applicant was the owner of a motor vehicle. During late 2021, the respondent undertook repairs on the motor vehicle and invoiced the applicant for the work performed. The applicant claims that she did not authorise all of the work performed, and should not have to pay for the part she did not authorise. She lodged an application with the Tribunal seeking an order that she not have to pay an amount of $4,050 which the respondent claimed was outstanding, and for the payment by the respondent of $828.88 for expenses she had incurred for Uber and related expenses.
- [2]The matter came before an Adjudicator of this Tribunal on 3 August 2022. The Adjudicator found that the applicant was unable to claim in this jurisdiction for the $828.88. That part of the decision does not form part of this appeal. Further, he found that the applicant had failed to establish a claim for relief from payment, and dismissed the applicant’s application.
- [3]The applicant seeks to appeal against the Adjudicator’s decision. This is the decision of the Tribunal in relation to that appeal application.
GROUNDS OF APPEAL
- [4]The applicant submits that the appeal should be allowed because:
- The adjudicator made an error of fact; and
- The adjudicator made an error of law in failing to consider relevant evidence.
- [5]The applicant claims that the Adjudicator erred at the outset of the hearing when he indicated “It seems to me that the issue that I have to make a decision about is as to what to make of Ms Tandayag’s argument that there was immediate repairs to be done, but that the balance of repairs would depend on financial circumstances” and conducting the hearing on that basis. She categorises this as an error of fact because she claims that:
- This was never her argument.
- Her argument (clearly set out in her material) was that she never authorised $6,000 worth of repairs. She only ever authorised the “dire essentials” worth about $2,000. When the respondent completed the unauthorised work she was pressured into applying for finance to pay for it.
- The Adjudicator failed to give proper weight to her evidence because he “incorrectly and improperly assumed” that her consent depended on finance.
- Her version of events was supported by a witness who provided an affidavit.
- The Adjudicator should have considered the evidence from the respondent that she did not email back after receiving a quote to complain or say she didn’t want to go ahead. This could not be construed as consent.
- [6]The applicant claims that the Adjudicator erred by:
- not allowing similar fact evidence to be received by the Tribunal.
- stating that her comments were “so imprecise” and “frankly unlikely” that a repairer would act in the way she suggested.
- not considering the following relevant evidence:
- in a conversation at around 1 pm on 22 November 2022, an employee of the respondent provided details of a buy now pay later credit company (humm). The applicant asked if she needed to make an account to obtain information regarding interests rates etc but did not provide consent for the work to be completed.
- at around 1.10 pm the respondent emailed her a document which she now recognises as an invoice but at the time thought was a quote. At 1.13pm the respondent emailed her a payment plan of what the repayments would look like if she decided to go ahead.
- there was no evidence of any contact between the parties after the emails were sent. There was, therefore, no evidence that she provided consent for the repairs to be undertaken.
- the quote which the respondent said was discussed with her during telephone conversations was never received by her, and the Adjudicator should have taken into account that the document had been sent to an incorrect email address and so could not have been received by her.
- the respondent had advised that it had audio recordings of her providing consent but has never produced those recordings. No audio or video evidence has been presented, despite signs in the reception area warning customers of CCTV recording audio and video. She has never been able to listen to the recordings and suspects that they either prove that she did not authorise the work or they do not exist and the respondent was dishonest in suggesting that they did. This would go to the respondent’s credibility.
- evidence that her (then) partner supported her eversion of events. This evidence was not properly considered or weighted.
- The applicant claims that the Adjudicator erred by:
- reversing the onus of responsibility by allowing the respondent to state that they proceeded with the work because the applicant had not emailed back to complain or say she did not want the work to go ahead.
- failing to take into account that the respondent’s database allows for entries to be added retrospectively, and had drafted the entries after this dispute arose, instead finding that the data is “real time” and weighting it accordingly.
TRANSCRIPT OF PROCEEDINGS 3 AUGUST 2022
- [7]The Transcript reveals that the Adjudicator commenced the hearing at 3.14pm, and concluded at 3.59pm. Relevantly, the transcript contains that following:
- The Adjudicator commenced proceedings by stating “It seems to me that the issue that I have to make a decision about is as to what to make of Ms Tandayag’s argument that there was immediate repairs to be done, but that the balance of repairs would depend on financial circumstances. Because what Ms Tandayag is asserting is that she was told that the essential repairs were going to costs about $2,000”.
- The respondent provided evidence that:
- the applicant had agreed to pay a $2,000 deposit and “the rest would be on humm”.
- the applicant did proceed to apply for funds from humm, which was not necessarily an indication that she had financial limitations, as people use finance for all sorts of reasons.
- The applicant received a quote and did not email back to complain or indicate she did not want to proceed. She then paid the deposit of $2,000, which was an indication that she wished to proceed with all the work.
- When the payment schedule was sent to the applicant, she did not come back and say “No. Stop”. Despite multiple opportunities, the applicant never indicated that she did not wish to proceed.
- The applicant never indicated that she would be unable to afford to pay for repairs.
- The Adjudicator asked the applicant for evidence that she had asked the respondent to stop working on the car, or do limited work, or not do any work. The applicant stated that she gave that advice over the telephone, which is when she asked for the information about humm so that she could consider whether she would go ahead with it.
- The applicant provided evidence that:
- She never agreed to spend $6,000 on the car, and it wouldn’t make sense for her to enter into that agreement when she attended university and worked casually.
- When she was presented with the $6,000 bill and told that the work had been done and they couldn’t undo it, she was “scrambling”. She thought she had no choice but to pay for the repairs and the application for humm finance was made in that circumstance.
- The application for humm ultimately didn’t proceed “on purpose” because she had only ever agreed to pay the $2,000, not the $6,000 that she was billed for.
- The respondent supplied goods and services in circumstances where she had not agreed to buy or receive them. This was an unsolicited supply.
- The onus is on the respondent to prove a legitimate right to payment. They did not satisfy that requirement.
- Google searches show that other people have been “in the same boat” where they have been charged thousands of dollars.
- The Adjudicator indicated that “this court does not have any interest in Google searches”.
- The Adjudicator ruled that:
- The applicant had brought a claim for relief of payment against the respondent;
- This case came down to events that took place on the 21st of November. The vehicle was brought in for some repair works to be carried out. The evidence given by the respondent was that the vehicle had not been serviced regularly and that the applicant knew that there were essential repairs to be carried out.
- “Ms Tandayag suggests that she made it clear that there were only to be carried out some $2,000 worth of intense or urgent repairs. She’s not able to specify particularly what those items were to be. She relates to a comment made by Ms Birtles-Eades to that, but it is so imprecise and, frankly unlikely that a repairer would act as Ms Tandayag suggests. It seems to me that, on the overall assessment of the evidence, I am prepared to accept the respondent’s version of events that the work needed to be done and was authorised to be done”.
- It could well be the case that the applicant had second thoughts about the matter, which seems to have relied upon the later discussion about not having authorised the additional work. Again, in the assessment of the evidence that’s been provided by both parties in written form and also orally before me, I am more persuaded by the respondent’s evidence that the work needed to be carried out and that the applicant would, by either assistance from some friend, or finance, have the balance of the account paid.
- The applicant provided evidence that the rejection of the humm application was done on purpose by her. There is some basis for the applicant to say that it was not their responsibility to get involved in financial matters…
- I am satisfied that the work which was conducted was authorised.
- The applicant had not established a claim for relief from payment and the application was dismissed.
DID THE TRIBUNAL ERR IN FINDING THAT THE APPLICANT HAD NOT ESTABLISHED A CLAIM FOR RELIEF FROM PAYMENT
- [8]Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary[1]. Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error[2].
- [9]The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions. An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case[3].
- [10]The applicant complains that the Adjudicator did not properly consider and did not accept her evidence. It is true that the totality of her evidence is not explored in detail in the decision. It was not necessary that the Adjudicator do so exhaustively. In the minor civil jurisdiction, Adjudicators are required to quickly assess all the evidence brought before them, identify and determine the factual and legal issues, formulate their orders and give their reasons during a short hearing. Reasons are by necessity brief.
- [11]The Adjudicator was clear in explaining the basis for his decision. He clearly understood the applicant’s claim that she did not authorise works to be completed that would cost more than around $2,000. The Adjudicator determined that the applicant did authorise the full amount of works to be completed. There was sufficient evidence to justify that decision, even though the applicant says it was wrong. There was no error of law in that finding. Based on his assessment of the evidence, he accepted that an agreement was reached between the parties. He identified the evidence upon which he made the finding. The assessment of evidence is a matter for the Adjudicator in the hearing.
- [12]The absence of the audio recording does not make the findings of the Adjudicator unsafe. It weakens the respondent’s case but does not otherwise affect these proceedings.
- [13]The evidence was capable of supporting the conclusions reached. There is no basis for interfering with the factual conclusions reached by the Adjudicator.
- [14]There remains the issue as to whether the evidence which the applicant describes as “similar fact” evidence should have been allowed. Similar fact evidence is generally excluded in a criminal trial because of a concern that if such evidence was admitted it would be given undue weight by a jury, and would be more prejudicial than probative. Such considerations do not apply in civil proceedings, and similar fact evidence regarding a pattern of behaviour by a party has been allowed in particular circumstances.[4]
- [15]In this case, however, the applicant states that she wished to introduce evidence that the respondent engaged in conduct which she says would have established that “the conduct engaged in here is part of the respondent’s business model”. She sought to rely on Google reviews from other members of the public, some of which, she says, demonstrate that other people were also charged for works they did not authorise. The particular case she highlights is a person who writes online that they sought a road worthy certificate and upon being told by the respondent that they had advised the relevant Department that the car had failed and the registration was to be cancelled, they agreed to repairs as suggested by the respondent. Other examples contain allegations that the respondent has engaged in what might be termed unconscionable conduct and / or taken advantage of its customers.
- [16]Firstly, online reviews are notoriously unreliable and subject to manipulation. They are not, as a general rule, good evidence. There does not seem to have been any suggestion that the authors of the reviews were available to be called in these proceedings. The evidence available was of a low probative value and would not “logically support the probability of the plaintiff’s case being true”.[5]
- [17]Secondly, the circumstances outlined in the examples of online reviews provided by the applicant are not sufficiently similar to be accurately described as similar fact evidence. The Courts have taken a very narrow interpretation of what amounts to similar fact evidence. For example, similar fact evidence has not been allowed where “precisely what was said on the particular occasion was of great importance, so that the evidence of the other conversations would not tend to prove the making of the particular representations on which the particular applicants in that case relied”[6].
- [18]This is such a case. Precisely what was said between the applicant and the respondent is of great importance, and so evidence of other conversations and dealings would not tend to prove the making of particular representations in this case. There was no error in refusing to consider the Google reviews.
- [19]Leave to appeal is refused.
Footnotes
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3)
[2]Pickering v McArthur [2005] QCA 294
[3]Cougar Air Pty Ltd v Sankarayya [2015] QCATA 98
[4]Morris v Warrian & Anor [2003] QDC 009
[5]Morris v Warrian & Anor [2003] QDC 009
[6]D F Lyons Pty Ltd v. Commonwealth Bank of Australia (1991) 28 FCR 597,