Downes v Smith [2014] QCATA 350

CITATION: Downes v Smith [2014] QCATA 350 PARTIES: Elizabeth Downes (Applicant/Appellant) v Gary Smith (Respondent) APPLICATION NUMBER: APL263 -14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Acting Deputy President Stilgoe OAM DELIVERED ON: 16 December 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 5 June 2014, requiring Elizabeth Downes to pay Gary Smith $10,000, is confirmed. 4. The decision of 5 June 2014 is otherwise set aside. CATCHWORDS: APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where purchase of car by instalments – where instalments not paid – where order for return of car – whether tribunal can order return of car - whether grounds for leave to appeal PROCEDURE – where dispute listed for mediation – where mediation did not occur – where tribunal directed dispute be listed for hearing without mediation – whether failure to provide natural justice Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 13(2)(a)(iv), 66 Sale of Goods Act 1896 (Qld) ss 20, 21 Dearman v Dearman (1908) 7 CLR 549 -- 1 of 4 -- 2 Fox v Percy (2003) 214 CLR 118 Pickering v McArthur [2005] QCA 294 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] Ms Downes bought a 1999 Jaguar from Mr Smith for $11,000. In August 2013, she signed an agreement and a bill of sale, paid a deposit of $350 and took possession of the car. Ms Downes was supposed to pay the balance by monthly instalments of $1,000. She paid nothing. Mr Smith tried to repossess the car but Ms Downes resisted. He filed an application in the tribunal for payment of the balance. A Magistrate, sitting as a member of the tribunal ordered Ms Downes either return the car or pay the balance due by 12 June 2014. [2] Ms Downes wants to appeal that decision. She says the tribunal did not offer compulsory mediation. She says that the agreement she signed was not a true and correct hire purchase agreement. She says she did not threaten Mr Smith with trespass but merely responded to his threat. She says she intended to pay for the car but her financial circumstances did not allow her to do so. [3] 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 Smith did not want the dispute to go to mediation because he felt that it would not result in a settlement. Despite Mr Smith’s views, the tribunal set the matter down for mediation. The mediation certificate records that the Dispute Resolution Centre had not been able to facilitate mediation and, therefore, it considered the dispute not suitable for mediation. The tribunal then ordered the dispute be listed for hearing. [5] As the learned Magistrate observed3 the tribunal has power to hold an expedited hearing. The tribunal can give a direction at any time and do whatever is necessary for the speedy and fair conduct of the hearing4. The tribunal’s decision to by-pass mediation was appropriate given the parties’ history. It is not a failure to provide natural justice and it is not a ground for leave to appeal. 1 QCAT Act s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 at [3]. 3 Transcript page 1- 12 lines 46 – 47. 4 QCAT Act s 66(1). -- 2 of 4 -- 3 [6] Ms Downes submits that the agreement she signed is not a true and correct hire purchase contract. She says the agreement did not include details about what happened if she was late in paying an instalment, what fees were incurred and what the repossession procedure would be. [7] There is nothing on the file to suggest that Mr Smith is a credit provider who is, or should be, subject to the National Consumer Credit Protection Act 2009 (Cth). The parties signed a simple, written agreement which recorded the terms of the agreement between them. The absence of specific terms about the consequences of breach does not make the agreement invalid. [8] Ms Downes’ comments about trespass are not relevant to the dispute between the parties. [9] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.5 However, the appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.6 [10] The learned Magistrate found that there was a contract7. She found that Ms Downes failed to pay Mr Smith according to the contract8. Ms Downes admitted that she owed Mr Smith more than $10,0009. The learned Magistrate found that Ms Downes had no defence to Mr Smith’s application10. The evidence can support those findings and there is nothing in the transcript to persuade me that the learned Magistrate should have taken a different view of the facts. [11] Just as Ms Downes’ financial difficulties are not a defence, they are not a ground for leave to appeal. [12] Despite this, the learned Magistrate’s decision must be set aside, in part. Because the contract did not specifically provide otherwise, property in the Jaguar passed at the time of contract11. Although s 13(2)(a)(iv) of the QCAT Act allows the tribunal to order the return of goods, that power can only be exercised if a legal right to possession exists. Even though the car was still registered in his name12, Mr Smith made it clear that his intention was that Ms Downes would become the registered owner. He gave her all the papers necessary to transfer registration13. As Mr Smith had no right to possession, the learned Magistrate erred in ordering that the car be returned. 5 Chambers v Jobling (1986) 7 NSWLR 1 at 10. 6 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. 7 Transcript page 1-13, lines 8 – 9. 8 Transcript page 1-13, lines 14 – 16. 9 Transcript page 1-8, lines 33 – 34. 10 Transcript page 1-13, lines 31 – 32. 11 Sale of Goods Act 1896 (Qld) ss 20 and 21. 12 Transcript page 1-6, line 4. 13 Transcript page 1-6, lines 5 – 6. -- 3 of 4 -- 4 [13] Leave to appeal should be granted and the appeal allowed. The decision of 5 June 2014, requiring Elizabeth Downes to pay Gary Smith $10,000, is confirmed. The decision of 5 June 2014 is otherwise set aside. -- 4 of 4 --