Davey and anor t/as Kosa Design Pty Ltd v Bajaj and anor t/as Doorsplus Pty Ltd [2023] QCATA 32

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Amanda Davey and anor t/as Kosa Design Pty Ltd v Gary Bajaj and anor t/as Doorsplus Pty Ltd [2023] QCATA 32 PARTIES: AMANDA DAVEY AND PETER DAVEY T/AS KOSA DESIGN PTY LTD (applicant/appellant) v GARY BAJAJ AND ADAM O’NEIL T/AS DOORSPLUS PTY LTD (respondent) APPLICATION NO/S: APL065-22 ORIGINATING APPLICATION NO/S: MCDO 1323/20 MATTER TYPE: Appeals DELIVERED ON: 24 March 2023 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member WA Isdale ORDERS: Leave to appeal is refused. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the Tribunal made orders under the Australian Consumer Law for the respondents to remedy the defective parts of the contract – where the appellants seek leave to appeal the decision because the Tribunal did not consider remedies under Contract Law – where the appellants seek a full refund – whether an appeal is necessary to correct a substantial injustice Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 28, 142 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) -- 1 of 6 -- 2 REASONS FOR DECISION Introduction [1] The applicants have a dispute with the respondents regarding certain doors, which the respondents are in the business of providing. The timber doors were for use in the applicants’ home. [2] Dissatisfaction with the doors and hinges led to attempts by the respondents to arrive at a remedy satisfactory to the parties. This was unsuccessful and the applicants chose to take the dispute to QCAT. [3] It is not necessary for present purposes to consider the whole of the progress of the dispute in the QCAT system. The relevant part is the hearing, which took place on 16 February 2022 before the Adjudicator, who provided reasons and made orders at that time. The proceedings were recorded, and the 36-page transcript of the proceedings provides the record of what occurred. In addition, the applicants have provided a two- page attachment, dated 2 May 2022, to their application. The respondents provided their submissions on 9 May 2022 and the applicants made a reply dated 15 May 2022. The applicants divide their complaint into the categories of installation work and delivery and ask that the two aspects be considered as a whole. It is appropriate for the matter to be approached in that way. [4] The applicants require leave to appeal, so this is the first consideration. It is useful to examine what the grounds of appeal are, and what orders the applicants are now seeking. [5] The decision was given by the Adjudicator ex tempore on 16 February 2022. The grounds of appeal raise five matters in respect of the hearing: “1. Member made it difficult for us to properly present our evidence. Our hearing felt rushed and we feel we weren’t heard properly, were shut down, pre- judged and Member was dismissive. 2. Member’s decision was based on an interpretation of Consumer Law and did not fully consider our evidence and remedies available to us including under Contract [L]aw. We completed our side of the contract with our payment on 26 October 2020. Respondent has failed to complete their side to this day. 3. Member made decisions based on hearsay and the cost order for re- installation costs and for partial refund created more problems for us than it did (sic) remedy. 4. Decision Order 2 ignores our evidence that we never accepted these doors, and the Respondents could have collected them at any time, they were not what we ordered, were non-compliant with our contract and the Respondents left them knowing they were non-compliant. 5. Member contemplated ordering rework by the Respondent, which indicated that the [M]ember did not understand the nature and extent of our claim. We felt pressured to compromise.” [6] It is useful to consider also the orders that the applicants are seeking in the event that they obtain leave to appeal. They wish to have the following: “Restore us to our position before the contract and order full refund. -- 2 of 6 -- 3 1. We ask that our contract with Doors Plus be cancelled or set aside and order 1 changed to order full refund of our payments to the Respondent so that we can start over with [11 doors from (handwritten)] another supplier. We completed our side of the contract; Respondent has made no effort to complete their side. 2. We ask that order 2 be changed from “ Applicants make available…doors delivered on 26 October 2021(sic) ” to “ Respondents remove…doors left at Applicants property on 26 October 2020 ”. They have always been available to Respondents to remove them but they have made no effort to do so to date. 3. Plus our costs” Should there be leave to appeal? [7] These considerations must be understood within the context of what QCAT is and what it is able to do. The Queensland Civil and Administrative Tribunal Act 2009 requires that in cases such as the present, which are characterised as a minor civil dispute, an appeal from the decision that has been made may only be brought if the appeal tribunal gives leave to appeal.1 [8] 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 in order to correct a substantial injustice caused to the applicant by that error.2 [9] It is necessary to bear in mind that QCAT is not bound by the rules of evidence but may inform itself in any way it considers appropriate.3 [10] A proper consideration of the grounds of appeal by examining them individually will assist in deciding the question of whether leave to appeal should be granted. Consideration of the grounds of appeal Ground One: “Member made it difficult for us to properly present our evidence. Our hearing felt rushed and we feel we weren’t heard properly, were shut down, pre-judged and Member was dismissive.” [11] There are two references in this ground to the subjective feelings of the applicants. This is respected as a genuinely held belief. However, when considered objectively, it does not establish that the ground is made out. Regard must be had to the record of the proceeding, the 36 pages of transcript. [12] Careful and impartial consideration of the transcript does not disclose anything which demonstrates that the Adjudicator made it difficult for the applicants to present their evidence. It is clear that the Adjudicator exercised control of the hearing so as to maintain focus on what was relevant. That is a necessary part of the Adjudicator’s duty and there is no indication that the proper bounds of it were exceeded. [13] The first ground of appeal makes reference to the feeling of the hearing being rushed, the feeling of not being heard properly, and being “shut-down”. It is also claimed that the matter was pre-judged, and that the Adjudicator was dismissive. 1 Queensland Civil and Administrative Tribunal Act 2009 s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 at [3]. 3 Queensland Civil and Administrative Tribunal Act 2009 s 28(3)(b) and (c). -- 3 of 6 -- 4 [14] The whole of the transcript shows that the hearing was properly managed and kept focused on its purpose, that proper opportunity was provided for a complete hearing and that there is no indication of pre-judgment, as distinct from proper control over use of time. The Adjudicator is shown by the transcript to be properly communicative rather than dismissive. Conclusion on ground of appeal 1 [15] For the reasons given, this ground has not been established. Ground Two: “Member’s decision was based on an interpretation of Consumer Law and did not fully consider our evidence and remedies available to us including under Contract law. We completed our side of the contract with our payment on 26 October 2020. Respondent has failed to complete their side to this day.” [16] The nub of the complaint here is that the applicants performed their part of the contract, and the respondents did not do likewise. The Adjudicator found that the Australian Consumer Law applies and that there had not been a major failure such as would allow the consumers, the applicants in this case, to reject the goods and obtain a refund.4 This is a finding that was open to the Adjudicator on the evidence led. [17] The applicants have asserted, but not established by reference to any authority, that some recourse to contract law would, in the present case, have led to a different result than the application of the clearly applicable Australian Consumer Law, which the Adjudicator was correct to apply to the present case. The applicants must establish their case, a burden which is not satisfied by asserting a claim. Conclusion on ground of appeal 2 [18] As explained, the ground has not been established. Ground Three: “Member made decisions based on hearsay and the cost order for re-installation costs and for partial refund created more problems for us than it did remedy.” [19] While this ground is made generally, without the benefit of elaboration and specificity, the Act, by section 28(3) does not limit QCAT to applying the rules of evidence; it is specifically permitted to “inform itself in any way it considers appropriate”5. [20] It is unfortunate that the applicants have found that the decision, from their point of view, created more problems than it solved but this is not a basis for an appeal. The obligation of QCAT is to “act fairly and according to the substantial merits of the case”6. [21] Acting fairly includes acting fairly to the respondents as well as the applicants. An outcome from an independent tribunal may not be exactly what either party had in mind but it will be what the tribunal, acting properly, must do on the basis of what is put before it and the rules it must follow. 4 T1-31, 4. 5 Queensland Civil and Administrative Tribunal Act 2009 s 28(3). 6 Queensland Civil and Administrative Tribunal Act 2009 s 28(2) -- 4 of 6 -- 5 Conclusion on ground of appeal 3 [22] This ground is not established, for the reasons that have been given. Ground Four “Decision Order 2 ignores our evidence that we never accepted these doors, and the Respondents could have collected them at any time, they were not what we ordered, were non-compliant with our contract and the Respondents left them knowing they were non-compliant.” [23] This ground of appeal contains the identical underlying notion which has already been considered in ground two, that as a matter of contract law, the doors were not accepted. This unfortunately cannot stand, for the reasons explained by the Adjudicator in the decision sought to be appealed. [24] The law which is applicable, the Australian Consumer Law, restricts what the applicants could do in the circumstances found by the Adjudicator to exist. They could not lawfully reject the doors as there was not a major failure within the meaning of that applicable law. The Adjudicator did not ignore the evidence of the applicants but made a finding that was open on the evidence. The result of that was that the doors could not be rejected, and a refund could not be obtained. Conclusion on ground of appeal 4 [25] As explained, this ground has not been established. Ground Five “Member contemplated ordering rework by the Respondent, which indicated to us that the member did not understand the nature and extent of our claim. We felt pressured to compromise.” [26] The complaint of feeling pressured to compromise is a statement of a subjective nature. That is not to deny the existence of the feeling. The record does not indicate any improper pressure by the Adjudicator in this, or any, respect. As a matter of fact, visible on the record, the applicants stood firm for what they wanted. [27] The concept that the Adjudicator, through contemplating rework by the respondents, did not understand the claim properly is not valid. As has been explained, the Adjudicator found, as was open to be found, that the doors could not be rejected and a refund obtained. Subsequent consideration of the matter was given in view of that and is accordingly unobjectionable. Conclusion on ground of appeal 5 [28] As explained, this ground has not been established. Consideration of all the grounds of appeal together [29] All of the grounds are, as well as being considered individually, considered together to see if there was any error by the Adjudicator that caused any substantial injustice to the applicants that needs to be corrected by an appeal. [30] The gravamen of the matter is that the applicants want, as made clear by the orders that they now seek, to be restored to the position before the contract was entered into. However much they want this, the Tribunal, because of the applicable law, is unable in the circumstances of this case to do that. -- 5 of 6 -- 6 [31] A consideration of all the grounds of appeal does not disclose any basis for concluding that leave to appeal ought to be granted. The consideration of the material as a whole does not justify a different outcome to that made necessary by considering the grounds of appeal individually. There is no basis upon which leave to appeal ought to be given. Conclusion [32] Leave to appeal is not able to be given. Order [33] Leave to appeal is refused. -- 6 of 6 --