Christie v The Pen Shoppe Pty Ltd [2016] QCAT 248

CITATION: Christie v The Pen Shoppe Pty Ltd [2016] QCAT 248 PARTIES: Andrew Mark Christie (Applicant) v The Pen Shoppe Pty Ltd (Acn 010 740 262) (Respondent) APPLICATION NUMBER: MCD 905-16 MATTER TYPE: Other minor civil dispute matters HEARING DATE: 6 July 2016, on the papers HEARD AT: Brisbane DECISION OF: Member McLean Williams DELIVERED ON: 18 July 2016 DELIVERED AT: Brisbane ORDERS MADE: Order as follows: Application adjourned, to a date to be fixed. Other minor civil dispute matters APPEARANCES and REPRESENTATION (If any): Applicant: On the papers Respondent: On the papers REASONS FOR DECISION [1] These are my reasons for decision for having adjourned the hearing of this matter, to a date to be fixed. That decision was made on 6 July 2016. These reasons are given in response to a request for same, made by the Applicant. [2] This dispute involves a fountain pen, purchased by the Applicant, Mr Andrew Christie, from the Respondent. Mr Christie says that the pen was purchased on 6 July 2011. Some 23 months later, in June 2013, Mr CATCHWORDS: -- 1 of 3 -- 2 Christie was complaining that the pen mechanism was faulty, such that the pen was taken back to the Respondent’s store in Adelaide Street Brisbane. The pen was examined by one of the Respondent’s employees, and no fault could be found with it on that occasion. The Applicant agrees that no fault could be detected during his store visit in June 2013, yet requested that the Respondent still note the fact of his having attended the store, within the warranty period. [3] On 13 October 2013 Mr Christie returned to the Respondent’s store in Elizabeth Street, Brisbane. On this occasion there were evident problems with the pen. The Respondent informed Mr Christie that the problem was assessed as a case of operator error, caused by over-tightening the mechanism. Mr Christie did not agree with that assessment. Nonetheless, Mr Christie took his pen away, and continued to make use of it, until December 2015, when he says it became totally inoperable. [4] On 4 January 2016 Mr Christie wrote to the Pen Shoppe, and demanded that they do something about the state of his pen. On 5 January 2016, Naomi, an employee of the Pen Shoppe, e-mailed Mr Christie, advising that their records revealed that the problem had been previously identified by the in-store technician on the occasion of the Applicant’s last attendance as a case of “over tightening of the piston end”. Because the pen was out of warranty, Naomi advised that Mr Christie would need to pay the repair cost. [5] Mr Christie was not happy with that response, and now brings this claim to QCAT seeking a refund of the money expended by him in July 2011. The pen cost $1,545. [6] This matter was set down for a hearing before QCAT on 14 July 2016. On 4 July 2016, the Respondent made an application to have the hearing adjourned to another date, sometime after 22 July 2016, on the basis that Ms Barbara Nichol would be overseas until 22 July 2016. Ms Nichol also proposed an alternate date, in the week following 22 July 2016. Mr Christie opposed the application to adjourn the hearing, in essence saying that he was available on the afternoon of 14 July 2016; was ready to proceed; and now wanted the matter finalised, quickly. [7] I accept at face value the contents of the Current Company Extract now annexed as annexure ‘AC2’ to the affidavit of Mr Andrew Christie, as was sworn by him on 5 May 2016. According to it, Ms Barbara Nichol is the sole director, company secretary, and the only beneficial owner of The Pen Shoppe Pty Ltd. Accordingly, Ms Nichol is the ‘controlling mind’ of the Respondent, and is the person whom is likely best placed to conduct this dispute before QCAT, and make decisions on behalf the Respondent as part of bringing this dispute to a conclusion. Indeed, Ms Nichol has said as much in her e-mail of 4 July 2016, wherein she indicates that her employee Kylee does not know the story and that Ms Nichol must be the person to discuss the issues before QCAT. It is not unreasonable for Ms Nichol to wish to be in the country and thus able to access her files and paperwork at the time of the hearing. As a legal practitioner, Mr Christie should know -- 2 of 3 -- 3 that. There is no legitimate evidence of prejudice to Mr Christie in having the matter adjourned, save for the inconveniences and lost opportunities to be doing something else more productive that inevitably attend the fact of his having elected to litigate. That factor affords insufficient ground to oppose the application for an adjournment. -- 3 of 3 --