Canvas Imaging v K9 Photography [2014] QCATA 232

CITATION: Canvas Imaging v K9 Photography [2014] QCATA 232 PARTIES: Canvas Imaging (Applicant/Appellant) v K9 Photography (Respondent) APPLICATION NUMBER: APL162 -14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe, OAM DELIVERED ON: 26 August 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 19 March 2014 is set aside. 4. The application filed 17 January 2014 is dismissed. CATCHWORDS: APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where claim for defective work – where tribunal applied Australian Consumer Law - where commercial transaction – where disclaimer – whether breach of contract – whether breach of obligations - whether grounds for leave to appeal Australian Consumer Law s 3 Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Pickering v McArthur [2005] QCA 294 Chambers v Jobling (1986) 7 NSWLR 1 -- 1 of 3 -- 2 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] K9 Photography is a photographer specialising in portraits of people and their pets. Canvas Imaging transfers photographs to canvas or acrylic. K9 Photography engaged Canvas Imaging to produce acrylics of its photographs for clients. K9 Photography claimed some of the acrylics Canvas Imaging supplied were faulty, so it filed a claim for a refund of $2,356. Two Justices of the Peace, sitting in the minor civil disputes jurisdiction of the tribunal, ordered Canvas Imaging pay K9 Photography the claim plus filing fees. [2] Canvas Imaging wants to appeal that decision. It says that the learned Justices erred in finding the goods were covered by consumer guarantees because K9 Photography was not a consumer under the Australian Consumer Law. It says that the customers caused the faults in the goods through misuse or failure to follow Canvas Imaging’s handling instructions. It says that on-selling a product voids any guarantees that it may have given K9 Photography. [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] The learned Justices did refer to K9 Photography as a consumer3. The goods may have had a value less than $40,000, and they may have been of a kind ordinarily acquired for domestic use4, but K9 Photography acquired them for the purpose of resupply5. Therefore, Canvas Imaging is correct in its submission that K9 Photography was not a consumer and the consumer guarantees under the Australian Consumer Law did not apply. [5] Therefore, the rights and obligations of the parties were governed by the terms of the agreement between them. K9 Photography only had a valid claim if it could show that Canvas Imaging breached the agreement. [6] Canvas Imaging’s terms of trade state that it will not be liable for any damage to the acrylics once the client receives it. It cites a number of reasons for the limitation of liability. It provides specific instructions for handling acrylics: ‘…to maintain the life of the order and avoid damaging the item:’ Canvas Imaging has this on its delivery advice: ‘PLEASE 1 QCAT Act s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 at [3]. 3 Transcript page 1-27, lines 46 – 47. 4 Australian Consumer Law s 3(1). 5 Australian Consumer Law s 3(2). -- 2 of 3 -- 3 CHECK ITEM FOR DAMAGES CAUSED BY THE COURIER PRIOR TO SIGNING THE RECEIVED SLIP…’ [7] The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.6 An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.7 [8] The learned Justices had emails from the K9 Photography’s clients, confirming that they complied with the hanging instructions, but they had little else. They did not have copies of the delivery slips signed by the clients. They did not have statement from clients. As Canvas Imaging pointed out, there was some delay between delivery of the acrylics and any reports of damage. The clients did not explain that delay or what may have happened during that delay. [9] There mere fact of a defect, some time after delivery is not sufficient evidence that Canvas Imaging breached its obligations to K9 Photography. K9 Photography had to establish a want of care by Canvas Imaging in the production of the image, or some other breach in the way that it dealt with the order from K9 Photography. [10] Canvas Imaging did not have to prove the fault occurred by some act of the client because K9 Photography, as applicant, bears the onus of proof. The evidence before the learned Justices is not capable of supporting a finding that Canvas Imaging was at fault, or in breach of the agreement, particularly given the specific disclaimers in its terms of trade. [11] Leave to appeal should be granted and the appeal allowed. The decision of 19 March 2014 is set aside. The application filed 17 January 2014 is dismissed. 6 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. 7 Chambers v Jobling (1986) 7 NSWLR 1 at 10. -- 3 of 3 --