Boyer v Grant [2017] QCATA 1

CITATION: Boyer v Grant [2017] QCATA 1 PARTIES: Richard Boyer (Applicant/Appellant) v Bryan Warwick Grant (Respondents) APPLICATION NUMBER: APL264 -16 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM DELIVERED ON: 12 January 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – where oral contract alleged – where tribunal found contract existed – where appellant disputes finding on basis that no documentary evidence to support claim – where appellant submits no time to prepare response – whether grounds for leave to appeal 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 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] Bryan Grant bought an electric bike in 2010/2011 for $2,500. It never worked as it should. Richard Boyer tried to fix it but couldn’t so, about 2½ years later, Mr Boyer gave Mr Grant a new bike. That bike didn’t work either, -- 1 of 3 -- 2 so Mr Grant asked the tribunal for an order that Mr Boyer refund his money. The tribunal ordered accordingly, finding that Mr Boyer sold the bike to Mr Grant. [2] Mr Boyer 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 [3] Mr Boyer says that Mr Grant presented a forged document to the tribunal, of which he now has evidence. He says that Mr Grant’s claim was substantially changed by the time of the hearing and, therefore, he had no time to rebut the claim or supply evidence. He says that Mr Grant should not have disposed of the bike the subject of the claim. He says Mr Grant did not support his claim with any documentary evidence. The allegedly forged document [4] Mr Boyer has not provided a copy of evidence supporting his claim that a document was forged. If he alleges that Mr Grant forged a document from a Mr Wood, who may or may not have been a former partner of Mr Boyer, it is of no consequence. Mr Grant told the tribunal that Mr Boyer sold him the bike. Mr Boyer denied he did so. The tribunal had to decide which of the two parties it preferred, based only on their oral evidence. They preferred Mr Grant’s evidence3. There is no evidence that any document played a part in the tribunal’s decision. This is not a valid ground of appeal. Mr Grant’s claim was substantially changed [5] Mr Boyer received a copy of Mr Grant’s amended claim 36 hours before the hearing.4 He had foreshadowed an application for adjournment and, at the hearing, the tribunal asked him whether he did want an adjournment.5 Mr Boyer told the tribunal that he was prepared to proceed.6 Mr Boyer cannot now say he was unprepared, or taken by surprise. There was no error by the tribunal in proceeding with the hearing when Mr Boyer expressly told it he was happy to do so. [6] In any event, the documents do not support Mr Boyer’s contention that the Mr Grant’s claim was substantially changed. It was always Mr Grant’s case that he bought a bike from Mr Boyer, it didn’t work, and he wanted his money back. The only change was the reduction in the amount of his claim because he sold the bike a couple of weeks before the hearing. 1 QCAT Act, s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 at [3]. 3 Transcript page 1-40, lines 26 – 35. 4 Transcript page 1-4, lines 31 – 37. 5 Transcript page 1-4, line 34. 6 Transcript page 1-4, lines 38 – 40. -- 2 of 3 -- 3 Should Mr Grant have disposed of the bike? [7] As I understand Mr Boyer’s brief submissions, because the bike was the subject of the claim (and therefore evidence), Mr Grant should have kept it. [8] Relations between Mr Grant and Mr Boyer broke down years ago. There was no suggestion that Mr Boyer was going to fix the bike. There was no suggestion he wanted another look at it as he was clear in his evidence about what he thought was the cause of the bike’s problem. [9] Conversely, Mr Grant had a duty to mitigate his loss. He did so by selling the bike. Mr Grant acted appropriately and this is not a valid ground of appeal. Should Mr Grant’s claim failed because he did not support his claim with documents? [10] It’s always easier to decide a claim that is supported by documentary evidence. But, if you buy an item for cash and don’t receive a receipt, then the absence of documents should not necessarily be an impediment to a successful claim. [11] 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.7 An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.8 [12] I have already noted that the tribunal had to decide between two versions of events. I have read the transcript and considered the material before the tribunal. The evidence can support the tribunal’s finding and I can find no compelling reason to come to a contrary view. [13] There is no reasonably arguable case that the tribunal was in error. Leave to appeal should be refused. 7 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125- 126. 8 Chambers v Jobling (1986) 7 NSWLR 1 at 10. -- 3 of 3 --