Chian v Cactus Towing Pty Ltd [2017] QCATA 24

CITATION: Chian v Cactus Towing Pty Ltd [2017] QCATA 24 PARTIES: Caroline Chian (Applicant/Appellant) v Cactus Towing Pty Ltd (Respondent) APPLICATION NUMBER: APL319-16 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM DELIVERED ON: 20 February 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused CATCHWORDS: APPEAL – LEAVE TO APPEAL – ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – JURISDICTION – where claim for reimbursement of part of towing costs – where applicant obtained a loan to pay towing costs – where claim based on unfinanced amount of towing costs – where tribunal found no jurisdiction – whether error – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 12(4) Burchell v A2B Towing Limited And Anor [2008] NZHC 1201 Chambers v Jobling (1986) 7 NSWLR 1 Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Pickering v McArthur [2005] QCA 294 -- 1 of 3 -- 2 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] When Caroline Chian parked her car in Fortitude Valley on 31 July 2016, she did not notice a sign indicating that the car park was a private car park and that unauthorised cars might be towed away. Ms Chian’s car was towed away and she had to pay Cactus Towing Pty Ltd $660 to have it released. [2] Ms Chian filed a claim for reimbursement of $400 of that $660. The tribunal dismissed her application because, it said, it had no jurisdiction to look at her claim. The tribunal also noted that, even if it had jurisdiction, there was no merit in Ms Chian’s claim. [3] Ms Chian wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.1 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.2 [4] Ms Chian’s ground of appeal is that she is a disability pensioner, on Centrelink, and she had to borrow the money to retrieve her car. She says she did not see the sign. She says she was only parked for fifteen minutes. She says the charge is excessive. [5] Ms Chian has supplied extra documents which show: a) The sign she says she did not see; b) Cactus’ charge was $660 (this was also before the tribunal below); c) She borrowed $260 to retrieve her car. Although the loan is expressed to be at 0% interest, Ms Chian has to pay $312 over six months, an effective interest rate of 40%. [6] Unfortunately, Ms Chian has not pointed to any error by the tribunal. The question for me, therefore, is to determine whether the tribunal erred in deciding that it had no jurisdiction. 1 QCAT Act, s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 at [3]. -- 2 of 3 -- 3 [7] Ms Chian is not claiming a debt or liquidated demand for which the tribunal has clear jurisdiction;3 she is claiming a reduction in a fee that was otherwise payable on the basis that it was unfair. [8] A party can bring a consumer/trader claim in the tribunal if there is a contract between those parties.4 It is a vexed question as to whether there was a contract between Ms Chian and Cactus. The preferable view is that there is a contract between Ms Chian and the owner of the property – that she could park there while conducting business on the property – and there was a contract between the owner and Cactus, but no contract between Ms Chian and Cactus.5 Therefore, the tribunal did not have jurisdiction to consider the claim as a consumer/trader claim. [9] The tribunal was correct in finding that it had no jurisdiction to consider Ms Chian’s claim. There is no reasonably arguable case that the tribunal was in error. Leave to appeal should be refused. 3 QCAT Act s 12(4)(a). 4 QCAT Act s 12(4)(b). 5 See Burchell v A2B Towing Limited And Anor [2008] NZHC 1201 at [14]. -- 3 of 3 --