Aldred v King I.T. Hervey Bay [2023] QCATA 42

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Aldred v King I.T. Hervey Bay [2023] QCATA 42 PARTIES: LINDA KATHLEEN ALDRED (appellant) v KING I.T. HERVEY BAY ABN 12 627 177 182 (respondent) APPLICATION NO/S: APL080-22 MATTER TYPE: Appeals DELIVERED ON: 13 April 2023 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Richard Oliver ORDERS: 1. That the leave to appeal be a granted. 2. The appeal allowed. 3. The order of the Tribunal of 18 March 2022 be set aside. 4. The King IT pay to the Linda Kathleen Aldred the sum of 1,600.00 by 30 May 2023. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – MINOR CIVIL DISPUTE – COMPROMISE AGREEMENT AT MEDIATION – ENFORCEMENT OF MEDIATION AGREEMENT – where parties agreed to compromise dispute at mediation – where respondent failed to comply with agreed settlement – where appellant sought to enforce compromise – whether appellant complied with her obligations under the compromise agreement – where decision related to original dispute and not the compromise agreement – where error of law. Queensland Civil and Administrative Tribunal Act 2009 ss 28(3)(c) and 142(3)(a)(i). Masters v Cameron (1954) 91 CLR 353 Terera & Anor v Clifford [2017] QCA 181 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) -- 1 of 5 -- 2 REASONS FOR DECISION [1] This appeal arises out of a dispute concerning the enforcement of a compromise agreement, described as a Payment Agreement, reached between the parties during a mediation in minor civil dispute proceeding. In that proceeding the appellant claimed that she purchased an Apple MacBook Air 13 inch 2015 refurbished computer from the respondent for $1,299 in December 2020. There were additional “add on” items set out in the invoice for set up, data transfer and installation of Microsoft Office, etc. the full details of the purchase are set out in Invoice number 52749. The total cost was $1,871. [2] By the “receipt terms” in the invoice, the respondent warranted that: King IT offers your choice of a refund, replacement or repair in the event of a major fault. [3] After about 6 months, problems arose with the computer and the appellant sought to return the computer and get a refund but that did not eventuate. She then commenced the minor civil dispute proceeding claiming the cost of the purchase of the computer. [4] In the usual way the Tribunal listed the matter for a mediation of the dispute between the parties. Because they both lived north of Brisbane in the Harvey Bay region the mediation was conducted remotely by telephone. [5] Fortunately, an agreement was reached in the mediation. It is recorded in a document entitled “Payment Agreement”. The essential terms of the agreement are that the respondent will pay to the appellant the sum of $1,600 by 20 October 2021. Further the appellant: Agrees to return the computer to the Respondent by 15 October 2021. Applicant agrees to provide the Respondent with Apple ID credentials so that the device can be unlocked. [6] Again, in the usual way, a Certificate of Mediation Outcome was placed on the file. Part B option 1 on the Certificate provided that: The parties have participated in a mediation before me and the procedure has finished. The parties have resolved their dispute. And the Parties agree to file the terms of settlement agreement in QCAT, and Agree that a party may apply to the tribunal seeking an order in accordance with the terms of settlement if the other party does not comply with the terms of the filed agreement (pursuant to section 85 of the QCAT Act) [7] The documents demonstrate that a concluded agreement was reached at the mediation which satisfies the first category referred to in Masters v Cameron:1 It may be one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect. 1 (1954) 91 CLR 353 -- 2 of 5 -- 3 [8] The formality is contained in the document referred to as the Payment Agreement signed by the appellant. It is not signed by the respondent, but this does not vitiate the agreement reached at the mediation. [9] There is no dispute that the computer was delivered to the respondent on 13 October 2021. It is signed for by an employee of the respondent. Initially, the power/charging cord was not delivered but was provided the next day and is also signed for by the same person from the respondent. The name of the person is not clear from the signature on the document. The appellant swears that the Apple ID Credentials were also provided at the time of handing over the computer. [10] The appellant complied with all of her obligations under the Payment Agreement. [11] Despite this, the respondent failed to pay the sum of $1,600 to the appellant. [12] In a letter to the appellant from the respondent dated 20 October 2021 (on the minor civil dispute file), said, inter alia: However, we have been using the device for the cause of the past few days and we cannot locate a fault with the device. We have run numerous tests and none seem to yield a fault…… Unfortunately, as we have been unable to fault the device. (sic) As such we are not willing to proceed with a refund as the device is working, we have spent time setting up the device, and spent time responding this (sic) QCAT claim. Having said that we do appreciate this may be somewhat unpalatable so we are happy to cover the costs of lodging the QCAT claim and return the MacBook to you to resolve this now. If this proceeds to QCAT we will withdraw this offer. [13] It seems what the respondent did not appreciate was that it had already agreed to the Payment Agreement at the mediation and, as discussed later, the fact that the computer did not demonstrate a fault when returned was irrelevant. Also, importantly there is no mention of a charger/cable not being delivered in that letter, or that being the cause of the problem the appellant was having. [14] As a result of the respondent’s failure to pay the money, the appellant filed a Form 40 application for a miscellaneous matter seeking an order that the respondent comply with the agreement. [15] The matter came on for a hearing before a Tribunal adjudicator on 18 March 2022. The application for payment was dismissed with an order that the respondent return the computer to the appellant. The reasoning for the dismissal was that the appellant failed to return to the respondent the power cord/charger that went with the computer. Also, the computer operated without fault when tested by the respondent. [16] The appellant then filed an application for leave to appeal or appeal on 11 April 2022. As this is an appeal brought under s 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) 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 ground of appeal is on the basis of an error of law. As this appeal involves the construction and 2 Terera & Anor v Clifford [2017] QCA 181. -- 3 of 5 -- 4 implementation of a Payment Agreement, I propose I propose to grant leave to appeal. Also the Tribunal proceeded on the wrong basis in not confining its enquiry to the agreement reached in the mediation. [17] The appellant has sought to introduce fresh evidence being the original invoice which is attached to her application. This is a little puzzling because it is already part of the record in the minor civil dispute proceeding and attached to her original application. The point she seeks to make is that the invoice makes no mention of a charger. I observe that it would be unusual if a charger was not supplied with the computer. [18] The appellant’s evidence before the Tribunal was that she had used the same charger in the time she had the computer as the one returned the day following the return of the computer. She was questioned about this by the learned adjudicator:3 Adjudicator: Right, so, Ms Aldred, so you’re saying that the computer did work for the six months with the cable that you got. Ms Aldred: Ye. Yes, it did [19] Mr Biffin, who was the representative of the respondent, disputed that the correct charger was returned. He proffered some explanation about there being a misunderstanding that the appellant was using a charger from an old MacBook.4 This evidence carries little weight in my view. It is based on assumption and Mr Biffin “believes” the wrong charger was returned. He assumed the returned charger was 35 watt charger whereas the computer needed a 60 watt charger. The respondent has not provided any direct evidence as to the type of charger that was returned, not even photograph of it. [20] If Ms Aldred returned the charger that she had been using for 6 months, it must have been the correct charger, that came with the computer. This is what she swears to. Furthermore, if Mr Biffin’s evidence is to be accepted, once he realised he had the wrong charger it would have been a simple matter to notify Ms Aldred that this was the case, and the alternate charger could have been returned. He did in fact have a charger because he says he tested the computer and it worked without any problems. [21] To clarify the situation Mr Aldred gave some evidence about the charger. His evidence was clear that there was no other charger/cable at their home and “we haven’t thrown anything liked that away”.5 In the absence of any direct evidence as to the type of charger Mr Biffin says was returned, rather than his assumption, the evidence of both Ms Aldred and Mr Aldred is clearly more persuasive and ought to have been accepted. [22] The Tribunal did make findings in support of Mr Biffin’s “hypothesis” that the computer did work with the correct charger, and it was the fact that Ms Aldred was using the incorrect charger which was the cause of the problem. The difficulty with this conclusion is that there is no dispute that the computer worked for 6 months with the charger that had been returned. [23] As interesting as the discussion about the charger and the functionality of the computer might be, it was all irrelevant to the issue to be decided, that was the enforceability of the Payment Agreement. 3 Transcript page 14 line 15 4 Transcript page 18 line 30 5 Transcript page 17 line 13 -- 4 of 5 -- 5 [24] The Payment Agreement reached provided that the appellant was required to return the computer by 15 October 2021 with the Apple ID credentials. This she did. The charger was not mentioned but it is reasonable to infer it was included in the reference to “computer”. She returned the charger the next day. [25] The learned adjudicator took the view that because the incorrect charger was returned, and the computer worked fine with the correct charger this vitiated the concluded agreement. However, the Payment Agreement was unconditional. Even accepting that the computer did work when Mr Biffin started it up, as he said in his letter of 20 October 2021, this still does not provide a means by which the respondent could avoid its obligations under the agreement. This is where the learned adjudicator fell into error. [26] The issue before the Tribunal was not the serviceability of the computer which was the basis of the original proceeding. It was solely about the Payment Agreement. By considering the issue of whether the computer operated with the correct charger she was reverting to the original issue in dispute which resulted in the Payment Agreement. That dispute no longer existed and was merged into the new Payment Agreement. The issue before the Tribunal was the performance of this agreement. [27] The appellant returned the computer as required by the Payment Agreement. The respondent, under the Payment Agreement was required to pay the sum agreed. If there was any breach of that agreement, e.g. failure to return the charger that would result is a damages claim for the cost of a charger. Furthermore, a new charger can be purchased at any electronic outlet for about $120.00.6 As the evidence of Mr Biffin demonstrates, the respondent did in fact have a charger. [28] As the direct evidence of the appellant supports the return of the relevant charger as opposed to Mr Biffin’s assumptions, the respondent’s obligation under the Payment Agreement was to pay the agreed sum to the appellant. [29] Finally, the named respondent in the minor civil dispute proceeding and this appeal is a business name. King I.T. is located at Hervey Bay, for clarity I propose to amend the name of the respondent to King I.T. Hervey Bay ABN 12 627 177 182 consistent with the information on the invoice. [30] Therefore, I propose to make the following orders (a) That the leave to appeal be a granted. (b) The appeal allowed; (c) The order of the Tribunal of 18 March 2022 be set aside. (d) The respondent pay to the appellant the sum of 1,600.00 by 30 May 2023. 6 Queensland Civil and Administrative Tribunal Act 2009, s 28(3)c) -- 5 of 5 --