Cicchini v Barbizon Pty Ltd trading as Euromarque [2015] QCATA 193

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Cicchini v Barbizon Pty Ltd trading as Euromarque [2015] QCATA 193 PARTIES: CONCETTA CICCHINI (applicant/appellant) v BARBIZON PTY LTD TRADING AS EUROMARQUE (respondent) APPLICATION NO/S: APL016-15 ORIGINATING APPLICATION NO/S: MCDO 903/13 MATTER TYPE: Appeals HEARING DATE: 15 April 2015 HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM ORDERS: Leave to appeal granted. Appeal allowed. Concetta Cicchini must file in the Tribunal one (1) copy and serve on Barbizon Pty Ltd one (1) copy of submissions on the application of the Trade Practices Act, by: 4:00pm on 13 May 2015. Barbizon Pty Ltd must file in the Tribunal one (1) copy and serve on Concetta Cicchini one (1) copy of submissions on the application of the Trade Practices Act, by: 4:00pm on 10 June 2015. MCDO 903-13 will be re-listed for hearing on a date to be fixed. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where appellant appealed the tribunal’s application of consumer law provisions – where the tribunal applied the Australian Consumer Law legislation – where the Trade Practices Act 1974 (Cth) was the applicable legislation – where leave to appeal is required – whether the appellant should be granted leave to appeal SALE OF GOODS – SALE OF GOODS LEGISLATION – ACTIONS FOR BREACH OF CONTRACT – REMEDIES OF BUYER – OTHER REMEDIES – where appellant -- 1 of 6 -- 2 sought return of purchase price of car from dealership in 2009 – where car had been returned to dealer over 20 times for repairs – where dealers refused to warrant several repairs – where the tribunal considered whether rejection period had lapsed under the Australian Consumer Law – where the applicable consumer legislation was the Trade Practices Act 1974 (Cth) – whether the tribunal’s consideration of the Australian Consumer Law was an error of law Competition and Consumer Law Act 2010 (Cth) sch 2 ('Australian Consumer Law'), s 54, s 259, s 260, s 262. Trade Practices Act 1974 (Cth) s 71(1), s 82(1). Cicchini v Barbizon Pty Ltd [2014] QCAT 675 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: Mr Ken Berrill, General Manager, Audi Centre Brisbane REASONS FOR DECISION [1] So, in 2009, Concetta Cicchini bought a new Alfa Romeo from Barizon Pty Ltd, trading as Alfa Romeo Gold Coast. The purchase price of the car, including on-road costs was $41,050. Ms Cicchini experienced problems with the car almost immediately. [2] They included rough idle, the engine stalling when braking and some gearbox issues. She returned the car to Barbizon over 20 times and she says, and it’s not disputed, that the car spent about 130 days in the workshop. Barbizon refused to acknowledge that some of the work was covered by the statutory warranty, which turns out to be a manufacturer’s warranty. [3] Ms Cicchini filed a claim in the tribunal on the 8th of May 2013, claiming a return of the purchase price. After some procedural issues, she reduced her claim to $25,000, which is the maximum of the tribunal’s jurisdiction. There were multiple directions aimed at resolving the dispute. In the end, however, the tribunal dismissed Ms Cicchini’s claim. [4] There are 15 grounds of appeal and I propose to deal with them all briefly. [5] The first ground of appeal is that the tribunal erred in its decision in paragraph 31, by stating that Ms Cicchini’s first attempt to terminate the contract or return the car was in 2012. I agree that the evidence shows that Ms Cicchini attempted to trade the car in on – in 2011. I do not think anything turns on that error and I must say that the tribunal was probably right where it said that the first clear communication that Ms Cicchini wanted to return the car was in 2012, but, as I said, nothing turns on that. 1 Cicchini v Barbizon Pty Ltd [2014] QCAT 675 (‘Cicchini’), [3]. -- 2 of 6 -- 3 [6] Ms Cicchini takes issue with the tribunal’s use of the word “expectation” in paragraph 72. She says that her expectation is irrelevant, and I agree that her expectation is irrelevant. The Trade Practices Act3 is an objective test. Again, nothing turns on that, however, because paragraph 7 of the decision is merely a recital of the facts and the events so far. It does not actually descend to an analysis of the facts and an application of the law. [7] The third point with which Ms Cicchini takes issue is that there was no requirement to accept further repairs because numerous attempts to repair had already taken place. That really depends upon whether Ms Cicchini had a right to return the car or whether it was simply a question of damages. If, as it appears from the discussion today, it was simply Ms Cicchini claiming a right to damages, then she has an obligation to mitigate her loss and the duty to mitigate the loss would probably include an opportunity for the repairer to have another go at fixing the problems. I understand that Ms Cicchini might think that that is unreasonable, given that the car had been in the workshop a number of times. The law, though, has a fairly black and white view about that. So, again, I do not think that is an error which gives rise to a ground for leave to appeal. [8] Ms Cicchini takes issue with paragraph 94, the reference to further directions. She says that the work was not rectified and there was further damage. Again, paragraph 9 is simply a recitation of what the tribunal’s directions were and what transpired. It is not, in fact, a decision about what the law is or what should happen. [9] Ms Cicchini says that the tribunal failed to take account of the further RACQ report. I disagree. The tribunal referred to that further RACQ report in paragraphs 10, 11 and 17 of the decision5, so it is clear that the adjudicator read it and took into account its importance. [10] The next ground of appeal is that the tribunal erred in law in failing to apply section 54 of the Australian Consumer Law.6 Ms Cicchini tells me today, and I accept, that the Australian Consumer Law, in fact does not have any relevance to this dispute. It should be the Trade Practices Act and I will come to that in a minute. [11] The next ground of appeal is that the tribunal erred in its review of the evidence, in that the car was returned in November 2009, not December 2009, and that appears in paragraph 16 of the decision. I agree with that. Page 1 of Ms Cicchini’s documents demonstrates that the first service report was in November 2009, but again nothing turns on that. It is an error of fact but it does not taint the actual decision. [12] The next ground of appeal is that the tribunal failed to properly review the service report of the 4th of November 2009, showing inherent and latent problems, and that Barbizon was aware of a pre-existing condition. The report in question says: Carried out service news 10.6.09. Replaced balance shaft, belt and tensioner, as required. 2 Ibid [7]. 3 Trade Practices Act 1974 (Cth) (‘Trade Practices Act’). 4 Cicchini, [9]. 5 Ibid [10], [11] & [17]. 6 Competition and Consumer Law Act 2010 (Cth) sch 2 ('Australian Consumer Law') s 54. -- 3 of 6 -- 4 [13] The service news document is not in evidence. It is not enough for Ms Cicchini to simply point to that and say “Therefore Barbizon must have known that there was a latent defect”. The onus of proof is on Ms Cicchini and that document, in itself, does not prove it. Barbizon, in its submissions on the application for leave to appeal, has made some submissions about that. It is fresh evidence. I cannot consider it without leave and I do not propose to take that into account because Ms Cicchini has not had an opportunity to see the document, the service news, and to comment on it, and I do not need to because, as I say, the onus of proof is on Ms Cicchini and simply filing the service report without demonstrating in some other way that Barbizon must have known about a latent defect is not sufficient. [14] The next ground of appeal is that the tribunal referred to expectations; that there was no evidence of Ms Cicchini’s expectations, and I have sort of dealt with this already. I agree. Whether you use section 547 or section 718, it is an objective test so the expectations are irrelevant. That means, therefore, that because there was no evidence of the expectations, the tribunal probably did not take them into account but it is irrelevant anyway, because it does not take you anywhere, in terms of the application for leave to appeal. [15] The next ground of appeal is that the tribunal failed to properly consider the fault codes and it is a bit like the argument about the service report in November 2009, that the fault codes in themselves do not lead anywhere unless there is evidence about what those fault codes mean and how they interact with the argument that the car is not fit for purpose or not of merchantable quality. Barbizon has, in its evidence, given an explanation of the fault codes, that they just demonstrate a fault, and tell a serviceperson where to look so I am not persuaded that the failure to specifically refer to the fault codes is an error which gives rise to a ground for appeal. [16] The next ground of appeal is in relation to paragraph 179 of the tribunal’s decision, where the tribunal says that the evidence of the RACQ is not evidence that the car is unsafe because of maintenance and not the initial delivery. I do not think that that is a failure to consider the evidence correctly. The tribunal was talking about a report that was done in May 2014 on a car which had travelled 52,000 kilometres. It is evidence of the state of the car at that time. It is not evidence of the state of the car when it was delivered, which is subject to some things I am going to say later, probably the date at which the car is not fit for purpose or not of merchantable quality. Ms Cicchini takes issue with the fact that there is no evidence for that finding that I have just referred to. If I look at the report itself, there is considerable evidence to demonstrate that it is an issue of where the report talks about worn discs, perished tyres, surface corrosion and rusted bolts, different tyre treads on the car, that the timing belt needs to be replaced due to its age, and the general condition of the car. [17] Ms Cicchini also says that the tribunal failed to take account of the service history of the car. I disagree. There is specific reference to the service history in paragraphs 16, 20 and 26.10 So really it is a question of fact. The appeals tribunal is not inclined to grant leave to appeal on the basis of an error of fact if the evidence is capable of 7 Australian Consumer Law s 54. 8 Trade Practices Act s 71. 9 Cicchini, [17]. 10 Cicchini, [16], [20] & [26]. -- 4 of 6 -- 5 supporting the decision unless the findings are contrary to the compelling evidence. There is evidence to support the adjudicator’s finding and it is not contrary to the compelling inferences of the evidence, although people might have different views, so this is not something that I find gives rise to a ground for appeal. [18] Ms Cicchini’s next ground of appeal is that the tribunal failed to make a finding about whether or not the car was fit for purpose. I disagree. At paragraph 20 there is an express finding about that. [19] Ms Cicchini next says that the findings in paragraphs 23 to 2511 of the decision that Barbizon dealt with the complaints are wrong. Paragraphs 23 to 25 are statements of the law. The application of the facts of the law does not start until paragraph 2612, so I don’t accept that as a ground of appeal. [20] I will go to the last ground of appeal first, which is a failure to provide closing submissions – Barbizon’s failure to provide closing submissions to Ms Cicchini. For reasons that will become apparent in a minute, that is not something that I think is particularly relevant, although the submissions on that point did not detail which submissions and when. I looked at the transcript of the hearing and it was apparent at the end of the hearing that the parties had said everything that they wanted to say and that there was going to be a reserved decision. I cannot find anywhere on the tribunal file that there were later submissions put in writing. I could be wrong but, as I said, for the purposes of this application for leave to appeal, that does not matter. [21] That brings me to the last ground of appeal, and that is that the tribunal did not make a finding that the car was merchantable quality or fit for the purpose. The tribunal did making a finding about that but the tribunal made the finding based on the Australian Consumer Law and the Australian Consumer Law is quite different in its terms from the Trade Practices Act and if this matter was under the Australian Consumer Law then I would have no hesitation in saying that the tribunal’s decision was correct because – there’s the issue of major failure under section 259,13 which leads to section 260,14 which is when is a major failure, which leads to – section 262, which talks about a rejection period and a rejection period is : A consumer is not entitled to reject goods if the rejection period has ended.15 The rejection period is the time from the supply of the goods to the consumer, within which it would be reasonable to expect the relevant failure to comply with a guarantee to become apparent, having regard to the type of goods, the use to which the consumer is likely to put them, the length of time for which it is reasonable for them to be used, and the amount of use for which it is reasonable for them to be put before a failure becomes apparent.16 11 Ibid [23]-[25]. 12 Ibid [26]. 13 Australian Consumer Law s 259(2)-(3). 14 Ibid s 260. 15 Ibid s 262(1)(a). 16 Ibid s 262(2)(a)-(d). -- 5 of 6 -- 6 [22] And the adjudicator found that the time for rejecting the goods had passed because, in his view, the use that the car had been put to and the time that had passed meant that it was no longer within the rejection period, and I agree with that. [23] Unfortunately, that is not the test. The test is under the Trade Practices Act, so it is section 71,17 implied condition, whether the car was reasonably fit for the purpose and whether Ms Cicchini has an action for damages under section 82.18 [24] The adjudicator failed to consider these issues, probably because the submissions before him were framed towards the Australian Consumer Law, however, the failure to consider the correct law is an error of law, for which leave should be granted, and the appeal allowed. Because it is an error of law, I have no option but to refer this back to the tribunal for a fresh decision, however, I will be referring it back with a set of these reasons so that the tribunal, when it is re-hearing it, is clear about what its job is, and that is to consider the Trade Practices Act issue. [25] So those are my orders. I will also order that Ms Cicchini may file and serve submissions in relation to the application of the Trade Practices Act. Orders 1. Leave to appeal granted. 2. Appeal allowed. 3. Concetta Cicchini must file in the Tribunal one (1) copy and serve on Barbizon Pty Ltd one (1) copy of submissions on the application of the Trade Practices Act, by: 4:00pm on 13 May 2015. 4. Barbizon Pty Ltd must file in the Tribunal one (1) copy and serve on Concetta Cicchini one (1) copy of submissions on the application of the Trade Practices Act, by: 4:00pm on 10 June 2015. 5. MCDO 903-13 will be re-listed for hearing on a date to be fixed. 17 Trade Practices Act s 71(1). 18 Ibid s 82(1). -- 6 of 6 --