Drive My Car Rentals Pty Ltd v Lincoln & anor [2014] QCATA 197

CITATION: Drive My Car Rentals Pty Ltd v Lincoln & anor [2014] QCATA 197 PARTIES: Drive My Car Rentals Pty Ltd (Applicant/Appellant) v Karen Lincoln Dimali Ediriweera (Respondents) APPLICATION NUMBER: APL213 -14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe, OAM DELIVERED ON: 28 July 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 17 April 2014 is set aside. 4. The application filed 11 November 2013 is dismissed. CATCHWORDS: APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – MINOR DEBT – where agreement to hire car – where hirer breached agreement – where agreement facilitated by agent – whether owner signed agreement – whether owner knew of terms of hire – whether breach of Australian Consumer Law - whether unfair contract term – whether misleading and deceptive conduct – whether grounds for leave to appeal Australian Consumer Law s 23 Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Pickering v McArthur [2005] QCA 294 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Chambers v Jobling (1986) 7 NSWLR 1 -- 1 of 5 -- 2 Lyons v Dreamstarter Pty Ltd [2011] QCATA 142 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 Ediriweera advertised her car for sale on Carsales.com.au. Drive My Car Rentals Pty Ltd contacted her, asking if she wanted to rent it out through that company’s services. Ms Ediriweera finally agreed so Drive My Car arranged for Ms Lincoln to rent Ms Ediriweera’s car. Ms Lincoln defaulted on the hire agreement, owing Ms Ediriweera $2,985.70. Ms Ediriweera filed a claim against both Ms Lincoln and Drive My Car. She obtained a decision against Ms Lincoln in default of a response. On 17 April 2014, two Justices of the Peace, sitting in the minor civil disputes jurisdiction of the tribunal, also ordered Drive My Car pay Ms Ediriweera the debt plus costs. [2] Drive My Car wants to appeal that decision. It says the learned Justices made their decision on a false statement that is in direct violation of its company policy. It says that it did not provide detailed evidence to support its case because, it thought, it was appearing simply to support Ms Ediriweera’s application to recover funds from Ms Lincoln. [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 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 [5] Ms Ediriweera’s evidence was that Drive My Car told her that it would be responsible for the payments and they have the credit card details of the drivers to ensure that. [6] Drive My Car took the learned Justices to the terms of an agreement between the company, Ms Ediriweera and Ms Lincoln. Under the terms of that agreement, Drive My Car entered into the agreement as agent for Ms 1 QCAT Act s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 at [3] per Keane JA. 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. -- 2 of 5 -- 3 Ediriweera5. Further, the agreement provided that Drive My Car collected the rental from Ms Lincoln and forwarded it on to Ms Ediriweera, but Drive My Car was not liable to Ms Ediriweera for the hire costs6. Drive My Car accepted no responsibility for fuel costs, charges, fines or Ms Lincoln’s failure to comply with the terms of the agreement7. [7] The learned Justices did not accept that Ms Ediriweera was bound by the terms of the agreement. They found that there was no link between Ms Ediriweera and the terms of the agreement because Drive My Car did not provide evidence of Ms Ediriweera’s web-based acceptance of the contract terms. [8] Drive My Car has provided that web-based evidence to the appeal tribunal. The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Drive My Car have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?8 [9] An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party’s case at the initial hearing. Drive My Car submits that it did not know it had a case to answer at the hearing, and thought it was assisting Ms Ediriweera in recovery against Ms Lincoln. Drive My Car was named as a respondent to the application. It filed a response to the application stating that it was not liable for the debt. There is no support for its suggestion that it was merely helping Ms Ediriweera recover the debt from Ms Lincoln. Drive My Car could have produced this evidence at the hearing and it has not explained why it failed to do so. [10] Although the evidence is credible, an application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party’s case at the initial hearing. The appeal should be determined on the basis of the evidence before the learned Justices. [11] Even without the fresh evidence, the learned Justices’ finding that there was nothing connecting Ms Ediriweera to the terms of the agreement was in error. [12] Ms Ediriweera told the learned Justices9 that Drive My Car sent her an agreement and that she signed that agreement with Ms Lincoln. She filed a copy of the Drive My Car agreement for use of a motor vehicle, which she had signed. There is a clause on the document in these terms: 5 Clause 19.1. 6 Clause 19.6. 7 Clause 19.8. 8 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408. 9 Transcript page 1-4, lines 40-41. -- 3 of 5 -- 4 The Driver and the Owner acknowledge that they have received, read and understood the DMCR Terms and Conditions from the DMCR website as well as the Agreement for Use of Motor Vehicle Terms and Conditions. [13] The evidence could support a finding that Ms Ediriweera was aware of, and bound by, the terms of the agreement before the tribunal. On the face of the written material before the learned Justices, Drive My Car was not liable to Ms Ediriweera for any of her loss. [14] The learned Justices relied on the Australian Consumer Law to find that Drive My Car engaged in misleading and deceptive conduct. The learned Justices did not ask either party to address them on the issue of misleading and deceptive conduct. The principles of natural justice require the tribunal to give parties the opportunity to address the tribunal on issues which will be the subject of the tribunal’s decision10. The learned Justices erred in not giving the parties this opportunity. The failure to provide natural justice is an error of law for which leave to appeal should be granted. [15] The learned Justices found that Drive My Car had engaged in misleading and deceptive conduct because of a conversation Ms Ediriweera had with an employee in which, according to Ms Ediriweera, Drive My Car told her it would be responsible for the costs of the contract. They made that decision in the context that Ms Ediriweera had not signed a contract. As I have already found, the evidence does not support the learned Justices’ finding that Ms Ediriweera did not sign the contract, or know that there were contract terms. [16] That finding necessarily affects Ms Ediriweera’s credibility in general. Ms Ediriweera had a number of conversations with Drive My Car – before the contract, when Ms Lincoln had the car and after Ms Lincoln breached the contract – but her evidence is confused about what information she received at any particular time11. It is apparent that she has condensed the information from a number of conversations into one impression. Given all the circumstances of the transactions between Ms Ediriweera and Drive My Car, the evidence does not support a finding that Drive My Car engaged in misleading and deceptive conduct. [17] The learned Justices asked Mr Atterbury, from Drive My Car, questions about standard term contracts. They noted12 that the standard contract terms did not include a reference to the Australian Consumer Law. They told Mr Atterbury that the Australian Consumer Law prevented the imposition of standard terms, without giving the other party an opportunity to vary them. [18] That is not quite a correct statement of the law. Section 23 of the Australian Consumer Law states that a term of a consumer contract is 10 Lyons v Dreamstarter [2011] QCATA 142. 11 See, for example, transcript page 1-15, lines 24-42. 12 Transcript page 1-12. -- 4 of 5 -- 5 void if the term is unfair and the contract is a standard term contract. The learned Justices did not consider whether this contract was a consumer contract. They did not consider whether the terms of the contract were unfair. However, because their comments about this aspect of the Australian Consumer Law did not form part of the learned Justices’ reasons for decision, there is no error that requries the appeal tribunal’s attention. [19] Leave to appeal should be granted and the appeal allowed. The decision of 17 April 2013 is set aside. The application is dismissed. -- 5 of 5 --