Fabsigns & Designs Pty Ltd v Kunara Tucker Pty Ltd [2016] QCATA 115

CITATION: Fabsigns & Designs Pty Ltd v Kunara Tucker Pty Ltd [2016] QCATA 115 PARTIES: Fabsigns & Designs Pty Ltd (Applicant/Appellant) v Kunara Tucker Pty Ltd (Respondent) APPLICATION NUMBER: APL073 -16 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM DELIVERED ON: 13 July 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE BREACH AND DEFENCES TO ACTION FOR BREACH – PERFORMANCE – where agreement to provide signs – where one of batch of signs not acceptable – where client paid for all but unacceptable sign – where supplier exercise retention of title rights and removed signs – where client applied for refund of money paid for acceptable signs – where tribunal ordered refund - whether grounds for leave to appeal Personal Property Securities Act 2009 (Cth) ss 12(2)(d), 21(1) Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Pickering v McArthur [2005] QCA 294 Central Cleaning Supplies (Australia) Pty Ltd v Elkerton (in his capacity as joint and several liquidator of Swan Services Pty Ltd (in liq)) (2015) 321 ALR 181 -- 1 of 3 -- 2 Chambers v Jobling (1986) 7 NSWLR 1 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] Kunara Tucker Pty Ltd engaged Fabsigns & Designs Pty Ltd to make signs for its business premises, including a rooftop lightbox sign. Kunara has a particular colour green as its corporate colour. The lightbox sign that Fabsigns supplied and installed was not the corporate green. [2] From a total invoice of $4,658.50, Kunara paid $3509, refusing to pay for the lightbox. It wanted Fabsigns to fix the lightbox. Fabsigns refused. Because Kunara had not paid the full amount, Fabsigns removed all signs. Kunara applied to the tribunal for an order that Fabsigns refund the money it had paid for the signs. The tribunal ordered Fabsigns refund Kunara’s payments. [3] Fabsigns 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] Fabsigns’ grounds of appeal are simple: it finds the decision incorrect, it feels its side of the matter was not correctly understood which led to a decision which, it feels, is unfair. [5] It is not for the appeals tribunal to find reasons to set aside a decision when the applicant has not bothered to descend to detail about why it is dissatisfied with the decision below. The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.3 An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.4 [6] I have read the transcript and considered the evidence before the tribunal below. The tribunal found that, in failing to provide a light box in Kunara’s corporate colour, Fabsigns did not breach the contract.5 I do not think the 1 QCAT Act s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 at [3]. 3 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125- 126. 4 Chambers v Jobling (1986) 7 NSWLR 1 at 10. 5 Transcript page 1-33, lines 40 -45 -- 2 of 3 -- 3 evidence necessarily supports that view but, as the error does not favour Fabsigns, I do not propose to consider it further. [7] The tribunal also found that Fabsigns could not rely on its retention of title clause to justify keeping Kunara’s payments. Fabsigns’ retention of title clause is comprehensive: 9.1 Title Notwithstanding the delivery of the Goods or their installation, title in any particular Goods shall remain with the Signwriter until the Client has paid and discharged any and all monies owing pursuant to any invoices issued by the Signwriter for the Goods, including all applicable GST and other taxes, levies and duties… 9.3 Repossession The Client hereby irremovably grants to the Signwriter the right, at its sole discretion, to remove or repossess any Goods from the Client and sell or dispose of them … [8] Clause 9 of Fabsigns’ terms and conditions is a security interest within s 12(2)(d) of the Personal Property Securities Act 2009 (Cth). A security interest is only enforceable if it is ‘perfected’ by registration on the Personal Property Securities Register.6 The tribunal had no evidence that Fabsigns had perfected its security interest. It was therefore entitled to find that the retention of title clause was unenforceable. [9] Even though the tribunal’s reasons for decision did not deal with the Personal Property Securities Act, its conclusions were correct. [10] There is no reasonably arguable case that the tribunal was in error. Leave to appeal should be refused. 6 Personal Property Securities Act 2009 (Cth) s 21(1); Central Cleaning Supplies (Australia) Pty Ltd v Elkerton (in his capacity as joint and several liquidator of Swan Services Pty Ltd (in liq)) (2015) 321 ALR 181 at [4]. -- 3 of 3 --