Constantine v Manheim Pty Ltd [2015] QCATA 87

CITATION: Constantine v Manheim Pty Ltd [2015] QCATA 87 PARTIES: Con Constantine (Applicant/Appellant) v Manheim Pty Ltd (Respondent) APPLICATION NUMBER: APL110 -15 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: A/Deputy President Stilgoe OAM DELIVERED ON: 23 June 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for leave to appeal or appeal is refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – CONSUMER/TRADER DISPUTE – where car purchased online from salvage auction – where car not able to be registered – where purchaser claimed misrepresentation – where claim dismissed - whether grounds for leave to appeal Australian Consumer Law ss 18, 29, 236 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] Con Constantine bought a 2010 Nissan Patrol, sight unseen, through an online auction conducted by Manheim Pty Ltd. The purchase price, plus freight, came to $9,103.44. -- 1 of 4 -- 2 [2] When he received the Nissan, Mr Constantine felt that Manheim had not described it properly. He wanted to return the Nissan to Manheim and obtain a full refund. Manheim did not refund Mr Constantine’s costs. He filed a claim in the minor civil disputes jurisdiction of the tribunal. The tribunal dismissed his claim. [3] Mr Constantine 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] Mr Constantine submits that he did not present his case well at the tribunal because he was nervous. He submits that some of Manheim’s comments at the hearing could have misled the tribunal. He submits that the learned Adjudicator did not correctly apply the Australian Consumer Law. [5] While the tribunal has an obligation to deal with matters in a way that is accessible and informal3, it cannot make the experience of a hearing stress free. Many parties are nervous at tribunal hearings. That is not a valid ground for leave to appeal unless it is obvious to the tribunal member that a party’s ability to conduct the case is impaired. I’ve read the transcript carefully. There is no evidence that Mr Constantine lacked the ability to present his case. [6] Mr Constantine does not specify which of Manheim’s comments misled the tribunal. Again, I have read the transcript and I can find no obvious example of misleading comments by Mr Flinn, who appeared for Manheim. [7] The Australian Consumer Law does state that a person must not, in trade or commerce, engage in misleading or deceptive conduct4. [8] The Nissan was listed for sale in Manheim’ salvage auction. Relevantly, Manheim described the Nissan in its on-line auction website as: No WOVR Mechanical issues No major panel damage [9] Mr Constantine accepted that the Nissan had mechanical issues. He told the learned Adjudicator that the description of minor panel damage was not correct – it had major panel damage – but this was not a problem5. 1 QCAT Act s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 at [3]. 3 QCAT Act s 3(b). 4 Sections 18, 29. 5 Transcript page 1-5, lines 5 – 6. -- 2 of 4 -- 3 [10] He also accepted that the designation “No WOVR” was correct. The Nissan was not registered in the Write Off Vehicle Register. However, he submitted that this was a misrepresentation by omission because Manheim did not disclose that the chassis was rusted so badly that the car was not roadworthy and could never be registered. [11] The information about the chassis was contained on a label attached to a key for the Nissan. The key and label were in an envelope in Manheim’s office. Manheim told the tribunal6 that Manheim was not aware of the existence of that label. The learned Adjudicator did not deal directly with that point in his reasons for decision but he did find7 that Manheim did not represent whether or not the Nissan could be driven. The evidence can support the learned Adjudicator’s finding that Manheim did not misrepresent the condition of the Nissan, because it did not know about the condition of the Nissan. [12] Mr Constantine also submitted that Manheim did not disclose that the Nissan had been used on a mine. His material does not explain why this was an important piece of information. There is no evidence that Mr Constantine thought it was important that the Nissan was not a mine vehicle and there is no evidence that anyone at Manheim was aware Mr Constantine considered it important that the Nissan was not a mine vehicle. [13] Even if Manheim had misrepresented the Nissan, Mr Constantine must also show that the misrepresentation caused his loss8. [14] Manheim sold the Nissan in a salvage auction. The terms of sale, which Mr Constantine accepted, stated that the car was sold “as is where is” with all faults9. As I have already noted, Mr Constantine was not concerned with the panel damage. Mr Constantine had an opportunity to inspect the Nissan prior to purchase. He wanted a car he could fix up and re-register. The mere fact that the Nissan was not on the WOVR was not, as Mr Constantine knew, a guarantee that it would be registrable. He frankly conceded that he was taking a risk10: But I bought it as – because there’s a sort of salvage vehicles that go through that are registrable … [15] Mr Constantine knew that Hastings Deering owned the Nissan and he’d had successfully bought a Hastings Deering vehicle before11. There is no evidence that Mr Constantine thought it important that the Nissan was used in a mine. There is no evidence that he discussed that aspect of the Nissan with anyone at Manheim. There is no evidence that the misrepresentations, if any, caused Mr Constantine’s loss. 6 Transcript page 1-8, lines 21 – 24, 36 – 42. 7 Transcript page 1-23, lines 17 – 19. 8 Section 236. 9 Clause 5. 10 Transcript page 1-9, lines 5 – 6; page 1-10, lines 3 – 41. 11 Transcript page 1-13, lines 6 – 6. -- 3 of 4 -- 4 [16] Leave to appeal should be refused. -- 4 of 4 --