Cockerell & Anor v Hunter Douglas Ltd & Anor [2022] QCATA 170

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Cockerell & Anor v Hunter Douglas Ltd & Anor [2022] QCATA 170 PARTIES: ALLAN COCKERELL (appellant) LEANNE COCKERELL (appellant) v HUNTER DOUGLAS LTD (respondent) ANTHONY JAMES MUNRO T/AS TJM SECURITY (respondent) APPLICATION NO/S: APL072-22 ORIGINATING APPLICATION NO/S: MCDO107-21 MATTER TYPE: Appeals DELIVERED ON: 17 November 2022 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member PG Stilgoe OAM ORDERS: Leave to appeal is refused. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – where the tribunal made an error as to the orientation of the room – where the error did not cause substantial injustice – where the appellant was seeking to make submissions about issues which had already been heard by the tribunal Queensland Civil and Administrative Tribunal Act 2009 s 32, s 142(3) Australian Broadcasting Commission v Bond (1990) 170 CLR 321 Attorney-General v Kehoe [2001] 2 Qd R 350 Chambers v Jobling (1986) 7 NSWLR 1 Commissioner of Taxation v Baffsky (2001) 122 A Crim R 568 Cui v Kim & Ors [2014] QCATA 033 Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 -- 1 of 5 -- 2 Pickering v McArthur [2005] QCA 294 Tully v McIntyre [2001] 2 Qd R Waterford v The Commonwealth (1987) 163 CLR 54 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 [1] In 2018, the Cockerells bought Vogue Shutters and had them installed in their property, which they used as an Airbnb. Hunter Douglas manufactured the shutters and TJM Security supplied and installed them. [2] After installation, Mr Cockerell told the respondents on several occasions that the shutters were not working. The respondents arranged to fix the shutters several times.1 [3] In 2020, Mr Cockerell sent letters to the respondents claiming the shutters were unfit for their intended use. Specifically, he claimed the shutters were advertised to be suitable for outdoor use, however due to design flaws, wind load caused damage to the shutters. He claimed that the shutters were therefore not suitable for outdoor use despite being advertised as such, and the damage came under the warranty. In response, the respondents stated that the damage was consistent with misuse and therefore the warranty did not apply. The parties came before the tribunal to resolve these arguments [4] The tribunal did accept there was some damage to the shutters.2 However, it was not satisfied that the damage was caused by wind. It accepted the respondents’ submission that the damage was caused by misuse, likely from Airbnb tenants opening and closing the shutters without care. It concluded that the warranty did not apply and dismissed the application. [5] The Cockerells want to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.3 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.4 [6] Findings of fact by a tribunal will not usually be disturbed on appeal if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.5 1 T1-5, 17 to 27; T1-14, 19 to 21. 2 T1-41, 15. 3 QCAT Civil and Administrative Tribunal Act s 142(3)(a)(i). 4 Pickering v McArthur [2005] QCA 294 [3]. 5 Dearman v Dearman (1908) 7 CLR 549 [561]; Fox v Percy (2003) 214 CLR 118 [125]-[126]. -- 2 of 5 -- 3 [7] An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.6 As the High Court said in Fox v Percy: 7 In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion. [8] There is no error of law simply in making a wrong finding of fact unless there is no evidence to support that finding.8 [9] As the Tribunal in Cui v Kim & Ors said:9 An application for leave to appeal is not an occasion for a retrial de novo, or for “second guessing” of questions of fact or credit that are the province of the primary decision-maker. Indeed, the very requirement to obtain leave is to preclude attempts to retry cases on the merits, or to introduce evidence or arguments that might have been led in the first place, but were not. On such an application the question is whether there is a reasonably arguable case of error which, if not corrected, will cause substantial injustice to the applicant. It is not nearly enough for an applicant to express disappointment, or to entertain a subjective feeling that justice has not been done. Where reasonable minds may differ, a decision cannot properly be called erroneous, simply because one conclusion has been preferred to another possible view. (citations omitted) [10] The Cockerells are, for the most part, making submissions about the tribunal’s findings of fact. I will deal with each of their grounds of appeal individually. Ground 1: the tribunal made an error about the orientation of the room [11] The Cockerells submit that the tribunal incorrectly concluded that the damaged shutters were on the eastern side of the room and the undamaged shutters were on the southern side of the room. This is relevant because the tribunal stated that if wind was the cause of the damage to the shutters, there would be damage to the southern shutters due to the south-easterly winds. As there was no damage to what the tribunal thought were the southern shutters, the tribunal concluded that the shutter damage could not have been caused by the wind.10 [12] It is true that the tribunal made an error as to the orientation of the room and where the damaged shutters were in relation to the prevailing wind. However, for leave to appeal to be granted, the error must be one which causes a substantial injustice. This is not such an error. [13] Firstly, the tribunal’s finding about the wind direction was only one reason why the tribunal did not find that the shutter damage was caused by wind. There were other reasons, including: the Cockerells failed to provide any evidence that the pins in the 6 Chambers v Jobling (1986) 7 NSWLR 1 [10]. 7 Fox v Percy (2003) 214 CLR 118 [128] (Gleeson CJ, Gummow and Kirby JJ). 8 Waterford v The Commonwealth (1987) 163 CLR 54 [77]; Australian Broadcasting Commission v Bond (1990) 170 CLR 321 [341]. 9 [2014] QCATA 033 [9]. 10 T1-40, 30 to 39. -- 3 of 5 -- 4 hinges were damaged or bent;11 identical shutters on the other side of the room were not damaged, which shows that the shutters were suitable for external use in particular cases;12 and the respondent provided a reasonable explanation for the shutter damage, that is that the damage was likely caused by misuse by Airbnb tenants. Whilst the tribunal made an error in one of its reasons, there are still other reasons why the tribunal did not find that the shutter damage was caused by wind. [14] More significantly, the Cockerells had the burden of proving that the damage was caused by wind and not misuse. They had the opportunity to put forward their evidence and arguments. Ultimately, the Cockerells failed to satisfy the tribunal that wind caused the shutter damage, and the tribunal’s mistake regarding the orientation of the room does not change that fact. [15] The evidence as a whole can support the tribunal’s finding and I can find no reason to take a different view. Ground 2: the tribunal incorrectly determined that the shutter damage was caused by misuse [16] The Cockerells submit that the tribunal accepted without challenge the respondents’ claim that misuse caused the damage. In their grounds of appeal, they make submissions as to why the shutter damage could not have been caused by misuse. [17] The Cockerells have not identified a relevant error here. Whether the shutter damage was caused by wind or misuse is an issue that was dealt with by the tribunal. The respondents’ claim about misuse was not unfounded or without challenge. The respondents explained and provided evidence to the tribunal about how the shutter damage could have been caused by misuse and human intervention.13 The Cockerells had an opportunity to, and did, respond to that submission.14 The tribunal considered misuse to be a reasonable explanation for the damage given the use of the property by Airbnb tenants. 15 The tribunal was free to accept the respondents’ evidence and arguments. [18] Again, this appeal is not an opportunity for the Cockerells to make further submissions on an issue that has already been dealt with. The evidence as a whole can support the tribunal’s finding and I can find no reason to take a different view. Ground 3: the tribunal incorrectly concluded that the shutters were suitable for outdoor use [19] The Cockerells submit that the shutters should not be used outside of a building because they cannot withstand a certain level of wind pressure. Again, this issue has already been heard and the tribunal acknowledged in its reasons the Cockerells’ strong emphasis on this point.16 [20] Both parties made submissions about this. In particular, the respondents drew a distinction between the shutters being used externally and the shutters being used as 11 T1-41, 1 to 14. 12 T1-40, 20 to 29. 13 T1-6, 25 to T1-7, 36; T1-8, 21 to 29; T1-11, 24 to T1-12, 6; T14, 6 to 15. 14 T1-19, 2 to T1-21, 20. 15 T1-41, 20-24. 16 T1-40, 10-11. -- 4 of 5 -- 5 wind protection.17 They said that the shutters were suitable for the former use but not the latter. The tribunal accepted this distinction.18 It pointed to the fact that not all of the shutters were damaged and stated that this shows in particular cases the shutters were suitable for external use.19 [21] Again, the evidence as a whole can support the tribunal’s finding and I can find no reason to take a different view. Ground 4: the tribunal missed a suggestion from the respondent which highlighted that the shutter had undisclosed problems under wind load [22] Hunter Douglas made suggestions to the Cockerells about how to manage the louvres in strong winds to reduce pressure on the shutters and provide a longer life for the product. The Cockerells say the tribunal appears to have missed this suggestion and that it is relevant because the suggestion highlights that the shutters had undisclosed problems under wind load. [23] The tribunal did not refer specifically to this submission. That does not mean that the decision is flawed and that leave to appeal should be granted. [24] The nature and extent of the obligation to provide full reasons varies according to the nature of the case.20 As Spigelman CJ remarked in Commissioner of Taxation v Baffsky: ‘It is not appropriate to parse and analyse judgments given on an ex tempore basis by judges of the District Court, who have a considerable caseload.’21 [25] Again, the evidence as a whole can support the tribunal’s finding and I can find no reason to take a different view. Ground 5: the tribunal incorrect determined that the shutter damage was caused by misuse [26] This is simply a restatement of the Cockerell’s disagreement with the tribunal’s conclusion and a ‘catch all’ ground which reiterates the former four grounds of appeal. Once again, findings of fact by a tribunal will not usually be disturbed on appeal if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.22 The evidence as a whole can support the tribunal’s finding and I can find no reason to take a different view. Orders Leave to appeal is refused. 17 T1-6. 18 T1-40, 10. 19 T1-40, 20 to 29. 20 Attorney-General v Kehoe [2001] 2 Qd R 350 [356]; Tully v McIntyre [2001] 2 Qd R [338]. 21 (2001) 122 A Crim R 568 [578]. 22 Dearman v Dearman (1908) 7 CLR 549 [561]; Fox v Percy (2003) 214 CLR 118 [125]-[126]. -- 5 of 5 --