Strong Movers v Dunn[2023] QCATA 55

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The appellant carries on business as furniture removalists. In early 2021 the Respondent contracted with the Appellant to move their furniture from their house in Cleveland to a short term storage facility and then to their new home in Redland Bay in April 2021. The quoted cost for the job was $7,258.50 which is reflected in the quote provided to the respondent dated 18 January 2021. There were some adjustments to the final price as reflected in the Job Sheet dated 7 April 2021, signed by the respondent when the furniture delivery was completed at about 8:30pm that evening.
2. [2]
   Although the respondent signed the Job Sheet, he did so reluctantly because of a threat that the furniture would be loaded back onto the truck if not signed and paid for. The signature, accepting the goods had been checked and that nothing was missing, on the Job Sheet has the notation “no do not agree…1 tall boy missing”.
3. [3]
   The following day, the respondent noticed that some of the furniture had been damaged, either in storage or during the move. As the damaged furniture was new, they sought some compensation from the appellant. A solicitor was engaged to write a letter of demand^[1] which set out in some detail particulars of the respondent’s complaint and claimed $8,080.91 damages for the lost and damaged items. Not only was their reliance on the general law, but also s 60 of the Australian Consumer Law, being schedule 2 to the Competition and Consumer Act 2010 (Cth).
4. [4]
   The appellant denied any liability for the claim, so the respondent commenced a proceeding in the minor civil disputes jurisdiction of the Tribunal on 16 June 2021 claiming refund of the removal and storage charges and the costs of replacement of the damage and missing goods. The particulars of the claim are annexure 1 to the application and total $8,050.91.
5. [5]
   The appellant’s response to the claim was firstly, it was not responsible for the damage, and secondly, it relied on the terms and condition of the contract which excluded liability for lost and damage items. Reliance was also placed on the fact that the Job Sheet  was signed and the respondent was satisfied that the move had been completed in a satisfactory manner, except for the missing tall boy (cabinet).
6. [6]
   The matter came on for hearing before the Tribunal on 3 March 2022. After hearing from both parties and after providing comprehensive reasons, the learned adjudicator found that the appellant was responsible for the damage to the furniture, and the missing items. She ordered that the appellant pay the respondent the sum of $8,402.91 plus the filing fee of $352.00.
7. [7]
   From that decision the appellant has filed an application for leave to appeal or appeal. As this is an appeal brought under s 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 in respect of a decision in a proceeding for minor civil dispute, an appeal may be made only if the party has obtained leave of the Tribunal. Leave to appeal will usually only be granted where there is a reasonable argument the decision was attended by error, or that an appeal is necessary to correct the substantial injustice caused by the error.^[2] The substantive grounds of appeal here are on the basis firstly of an error of fact and secondly of law, in reliance on the terms and conditions. As to the factual findings, the Appeal Tribunal will not, and cannot interfere with findings of fact which were open on the evidence before the decision maker.^[3]
8. [8]
   In summary the appellant’s grounds of appeal are that Mr Schuster, who appeared for the appellant, says he did not get a fair hearing as he was on medication days before the hearing and was unable to defend himself, the Tribunal failed to have regard to the terms and conditions of the contract, and the respondent failed to prove the losses claimed.
9. [9]
   As to the first point, the transcript of the hearing records the history of the matter including it being initially adjourned on 14 February 2022 to give the appellant further time to file material it intended to rely on. The hearing was further adjourned on 24 February 2022 for medical reasons relating to Mr Schuster. The next hearing date was  3 March 2022. The transcript of the final hearing does not record any complaint from Mr Schuster about his well-being or not being able to proceed because of a medical condition. In the absence of any complaint about not being able to engage in the hearing because of health issues, it was reasonable for the learned adjudicator to proceed with the hearing. It is also evident from the transcript that Mr Schuster did in fact put forward his defence in reliance on the terms and conditions of the contract. Also, the basis of his denial that the damage to the goods were the responsibility of the applicant.
10. [10]
    In these circumstances, I am not satisfied that there has been a denial of procedural fairness which would warrant a grant of leave to appeal.
11. [11]
    In respect of the damaged goods, the learned adjudicator made specific findings of fact based on the documentary evidence before her, including photographs, and the evidence of Ms Dunn. The photographs show the damage and the invoices for the purchase of those good establish the costs. In the reasons she made the following findings:

As I mentioned, photographs of the property show them in an extensive damaged condition. The applicant says, for example, in relation to the bed, she saw a contractor stand on the bed and over heard a contractor comment on the damage caused to the bed. There are marks, bumps, scratches, tears, considerable black marks on leather and rips or tears in leather. And I am satisfied, having viewed the photographs, that this almost new furniture was considerably damaged in the move. It is not feasible that this furniture was damaged in the way that it is depicted in the course of open homes. Whilst the applicants packed or bubble wrapped somethings themselves, most of the damaged items photographed are large items that the respondent was responsible for moving.

12. [12]
    It was suggested by Mr Schuster that the respondents were responsible for some of the missing items because they may have been dishonest. Also, the only item disputed on the Job Sheet was the tall boy. However, the evidence of Ms Dunn made clear that the delivery was not completed until late in the evening and they did not have an opportunity to inspect all of the items until it was completed and before the Job Sheet was signed. Most of the damage was noticed the following morning. The learned adjudicator rejected any suggestion of dishonesty on the part of the respondent and said:

I prefer the evidence of the applicants given in this case because their version of being supported by evidence. The time frame of the delivery is supported by the eftpos receipts and the job receipts. Purchase of the furniture is new (sic) is supported by these sales receipts. The damage to the is goods supported by extensive colour photographs and the damage depicted is consistent with being moved in a way that the removalists did not exercise due care and skill. In all the circumstances, I find that there has been a breach of the common law and the Australian consumer laws with respect to the exercise of due care and skill in relation to this move.

13. [13]
    There was more than sufficient independent evidence to come to the above conclusions.
14. [14]
    The learned adjudicator considered whether the terms and conditions applied to the contract and in doing so looked at the documents which supported the quote. She found that there was no link provided to the terms of conditions when the quote was provided by email. Also, the respondent was not made aware specifically, of the terms and conditions when accepting the quote. She found that the terms and conditions were not brought to the attention of the respondent and therefore could not be included as part of the contractual documents.^[4] Even if they were, she found that by reason of the application of the Australian Consumer Law the terms and conditions would not had defeated the claim.
15. [15]
    It is common practise now days when negotiating via email or on a website that party is directed to clicking a box with a notation such as “I accept the terms and conditions” or alternatively the landing page on the website the terms and conditions specifically identified so that by clicking on them, the party is referred to the terms and conditions. These are commonly known as “clickwrap” contracts or alternatively “browsewrap” contracts. Like many of the ticket cases that the learned adjudicator referred to generally in the reasons, in this case one had to turn to the reverse side of the quote to see any reference to terms and conditions which were in the following terms:

Upon acceptance of our quote you agree to the following terms and conditions upon our website.

16. [16]
    Such a methodology of adopting the terms and conditions of the contract is inconsistent with the common practice of specifically drawing the party’s attention to them, and ensuring the party acknowledges that they are accepted. That did not occur here and therefore the learned adjudicator was not satisfied that the respondent entered into the contract by accepting the terms and conditions. Once again that conclusion was open to her.
17. [17]
    The orders sought in this appeal by the appellant are that the respondent make a claim on the policy of insurance taken out by it on behalf of the respondent as identified in the terms and conditions. If the policy exists, and there's no reason to think that it doesn't, then it would seem unreasonable for the respondent not to make the claim and reimburse the appellant. That is what insurance is for.  However, it is not the type of relief that can be ordered by the Appeal Tribunal if leave to appeal was granted.
18. [18]
    The arguments put forward by the appellant a really a reiteration of the arguments put before the original decision maker. They do not identify any error other than general dissatisfaction with the end result. It is evident from the passages cited above that the conclusions reached by the tribunal at first instance we're open on the evidence and no error of law or fact has been demonstrated which would cause the Appeal Tribunal to intervene and grant leave to appeal.
19. [19]
    Therefore, leave to appeal is refused.