Benford v One Solomon Pty Ltd [2024] QCATA 1

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Benford v One Solomon Pty Ltd [2024] QCATA 1 PARTIES: SUSAN BENFORD (applicant/appellant) v ONE SOLOMON PTY LTD (respondent) APPLICATION NO/S: APL380-23 ORIGINATING APPLICATION NO/S: MCDO29/23 (Cleveland) MATTER TYPE: Appeals DELIVERED ON: 5 January 2024 HEARD AT: Brisbane DECISION OF: Member Lember ORDERS: The application to stay a decision is granted. The decision in MCDO29/23 (Cleveland) made 12 October 2023 is stayed pending the outcome of the application for leave to appeal or appeal. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – application for leave to appeal or appeal a minor civil dispute decision – consumer dispute – whether to stay the decision – where section 54 of the Australian Consumer Law misapplied – where stay granted based upon apparent error of law Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 58, s 143, s 145 Cachia v Grech [2009] NSWCA 232 Cooks Construction Pty Ltd v Stork Food Systems Aust Pty Ltd [2008] 2 Qd R 453 Day v Humphrey [2017] QCA 104 Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Hessey-Tenny & Anor v Jones [2018] QCATA 131 Medtel Pty Ltd v Courtney (2003) 130 FCR 182 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 -- 1 of 5 -- 2 Simonova v Department of Housing and Public Works [2018] QCA 60 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 What is this application about? [1] Ms Benford was unhappy with the quality of curtains installed in her home by the respondent, One Solomon Pty Ltd and refused to pay for them. On 12 October 2023 the Tribunal below ordered Ms Benford to pay One Solomon Pty Ltd the sum of $11,495.46 for the cost of curtains, interest, and the filing fee (‘the decision’). [2] Ms Benford wants to appeal the decision, but to do so, leave is first required.1 She wants the decision stayed pending the outcome of her application for leave to appeal and, if granted, the appeal. I have stayed the decision for the reasons that follow. Legislative framework [3] Under section 145(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) the Appeal Tribunal may make an order staying the operation of a decision of the Tribunal below until the appeal is finally decided. However, there is no appeal until and unless leave to appeal has been granted where required. [4] Section 58(1) of the QCAT Act however permits the Appeal Tribunal to make any interim order it considers appropriate in the interests of justice. Therefore, an application to stay a decision that falls outside the ambit of section 145 may be considered under section 58 to allow a stay of a primary order in circumstances where leave to appeal has not yet been granted.2 [5] McMurdo JA said in Simonova v Department of Housing and Public Works3 that “the circumstances must be exceptional before an order in the nature of a stay will be granted, pending an application for leave to appeal”. [6] To succeed on a conventional application for a stay, the party applying for the stay must satisfy the Appeal Tribunal that there is a good reason for the stay, including:4 (a) that the applicant has a good arguable case on appeal; (b) that the applicant will be disadvantaged if a stay is not ordered; and (c) that competing disadvantage to the respondent, should the stay be granted, does not outweigh the disadvantage suffered by the application if the stay is not granted. 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 143(3) (‘QCAT Act’); Application for leave to appeal or appeal filed 16 November 2023. 2 Hessey-Tenny & Anor v Jones [2018] QCATA 131 at [24]. 3 [2018] QCA 60 at page 5. 4 Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347 per Jerrard JA at [8]; Day v Humphrey [2017] QCA 104 per Morrison JA at [5] and [6]. -- 2 of 5 -- 3 A good arguable case on appeal [7] In determining whether to grant leave, the Appeal Tribunal must be satisfied that, relevantly: (a) there is a reasonably arguable case of error in the primary decision;5 (b) there is a reasonable prospect that the appellant will obtain substantive relief;6 and (c) leave is needed to correct a substantial injustice caused by the error;7 or (d) there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.8 [8] Section 12 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) confers the tribunal with jurisdiction over ‘minor civil disputes’, relevantly defined to include disputes between a consumer and trader (as defined).9 [9] Section 54(1) of the Australian Consumer Law provides that, where a person supplies goods in trade or commerce, the goods are guaranteed to be of ‘acceptable quality’. [10] The time at which goods are to be of acceptable quality is the time at which the goods are supplied to the consumer: Medtel Pty Ltd v Courtney (2003) 130 FCR 182 at [64] and [70]. [11] Sections 54(2) and (3) of the Australian Consumer Law define acceptable quality as follows: (2) Goods are of acceptable quality if they are: (a) fit for all the purposes for which goods of that kind are commonly supplied; and (b) acceptable in appearance and finish; and (c) free from defects; and (d) safe; and (e) durable; as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3). [12] Ms Benford’s objections were voiced the day after the curtains were installed and included that: (a) the curtains do not conform to Australian standards for length (they are too short); 5 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 6 Cachia v Grech [2009] NSWCA 232, 2. 7 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 8 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580. 9 QCAT Act, Schedule 3, paragraph 1(b) of definition of ‘minor civil dispute’. -- 3 of 5 -- 4 (b) the curtains do not conform to Australian standards as to width (they are not width enough); (c) the tracks for the ‘S’ curtains are plastic when silicone was specified; (d) the fabric used for bedrooms had no block out qualities and, therefore was not as represented and was not fit for purpose; (e) tracks in the master bedroom were to go over the wall on the left side of the main sliding door so as to leave the window views unobstructed however this did not occur, and the installed curtains obstructed the window view; and (f) hem lines were puckered, and the fabric was perforated. [13] According to the audio of the hearing, the Tribunal purported to apply section 54(2) in making its decision, stating at 2.45pm-2.47pm that it “could not find” that the curtains are “not of acceptable quality” because the guarantee under section 54 lists fitness for purpose, acceptable in appearance and finish, free from defects, safe and durable with the word “and”, which was “cumulative”, meaning, addressing Ms Benford: You need to show all of those things are in place before you can say goods are not of acceptable quality. [14] Respectfully, this appears to be a misinterpretation of section 54(2): it is cumulative in that all those elements need to be present for goods to be considered of acceptable quality (in the mind of a reasonable consumer). If one element is missing, goods may not be of acceptable quality (depending upon the outcome of other considerations). Ms Benford did not need to satisfy the Tribunal that the elements were absent for the Tribunal to find that goods were not of acceptable quality and in this regard the Tribunal fell into an error of law that then prevented the Tribunal from properly considering Ms Benford’s claims. Disadvantage to the applicant if a stay is not ordered [15] Ms Benford says the invoice is affordable and it is not suggested that One Solomon Pty Ltd could not afford to repay the funds if the application for leave to appeal and appeal succeed. There is no financial disadvantage to her of refusing the stay. Competing disadvantage to the respondent if the stay is granted [16] Final decisions should not be treated as merely provisional, and a successful party is entitled to the fruits of its judgment.10 The competing disadvantage to the respondent lies in an inability to enjoy the fruits of its first instance success. However, in this case such success is marred by an apparent error of law that led the Tribunal into error in dismissing the relief sought by Ms Benford under Australian Consumer Laws before considering it, and therefore, in ordering the payment of One Solomon Pty Ltd’s invoice. The disadvantage to the respondent does not outweigh the disadvantage to the applicant in such circumstances. 10 Cooks Construction Pty Ltd v Stork Food Systems Aust Pty Ltd [2008] 2 Qd R 453 at [12] cited in Hessey-Tenny & Anor v Jones [2018] QCATA 131 at [27]. -- 4 of 5 -- 5 Discussion [17] Ms Benford has a good arguable case on her application for leave to appeal or appeal and the decision is stayed pending the outcome of her application. Decision [18] Accordingly, pursuant to section 58 of the QCAT Act the decision in MCDO29/23 (Cleveland) made on 12 October 2023 is stayed pending further order of the Appeal Tribunal. -- 5 of 5 --