Biacsi v Lotz [2013] QCATA 335

CITATION: Biacsi v Lotz [2013] QCATA 335 PARTIES: Ernie Biacsi (Applicant) v Antoine Theodore Lotz (Respondent) APPLICATION NUMBER: APL425 -13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM DELIVERED ON: 26 November 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Application for leave to appeal is granted. 2. The Appeal is allowed. 3. The decision of 3 July 2013 for MCD3133/12 is set aside. 4. Antoine Theodore Lotz must pay Ernie Biacsi $23,700 ($21, 500 refund of the purchaser price + $1,925 cost of transport to South Australia + $275 filing fee) by 4:00pm on 23 December 2013. CATCHWORDS: APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where sale of boat – where year of manufacture mis-described – where boat stolen – where boat seized by police – where tribunal ordered token damages – whether grounds for leave to appeal Australian Consumer Law ss 3(1), 51 Sale of Goods Act 1896 (Qld) ss 15, 24 Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 -- 1 of 3 -- 2 Qd R 41 Cachia v Grech [2009] NSWCA 232 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 APPEARANCES and REPRESENTATION (if any): The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009. REASONS FOR DECISION [1] Mr Biacsi bought a boat from Mr Lotz. There were two issues with the boat. Firstly, it was advertised as a 2006 model when it was, in fact, a 1999 model. The second issue was that the boat was stolen in 2009. In 2012, the South Australian police seized the boat from Mr Biacsi. The boat has not been returned to him. [2] Mr Biacsi filed a claim for a refund of the cost of the boat plus the transport costs of getting the boat from Queensland to South Australia plus costs. An Adjudicator ordered that Mr Lotz refund $5,000. [3] Mr Biacsi wants to appeal that decision. He says that the learned Adjudicator erred in not finding that the year of manufacture was a fundamental term of the agreement. He says that the learned Adjudicator erred in focussing only on the difference in value between a 2006 model and a 1999 model, rather than putting Mr Biacsi back into the position he would have been in if the representation had not been made. He says that the learned Adjudicator erred in relying on unsubstantiated evidence about Mr Lotz’s repair costs. He says the learned Adjudicator erred in awarding an arbitrary figure of $5,000. [4] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?1 Is there a reasonable prospect that the applicant will obtain substantive relief?2 Is leave necessary to correct a substantial injustice caused by some error?3 Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?4 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 2 Cachia v Grech [2009] NSWCA 232 at 2. 3 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 4 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580. -- 2 of 3 -- 3 [5] A supplier has an implied guarantee to pass good title in an item when it is sold.5 There is an old established principle of English law, embedded in a Latin maxim6 that states that no-one may give something which he or she does not have. The principle is confirmed in s 24 of the Sale of Goods Act. Because the boat was stolen, Mr Lotz could not give good title. That was proven by the fact that the South Australian police seized it and that the boat is now held by the insurer of the original owner. [6] Mr Lotz did not meet his obligation to supply the boat with good title. The learned Adjudicator erred. Leave to appeal should be granted, the appeal allowed and the learned Adjudicator’s decision set aside. [7] Mr Biacsi is entitled to a refund of the purchase price of the boat. His costs in transporting the boat from Queensland to South Australia are reasonably foreseeable damages arising from Mr Lotz’s breach of contract and Mr Lotz should refund that sum. Mr Biacsi’s further costs are undefined and, largely, unsubstantiated. I will order Mr Lotz pay Mr Biacsi the filing fee but I decline to order any other amount. [8] I order Mr Lotz pay Mr Biacsi $23,700 ($21, 500 refund of the purchaser price + $1,925 cost of transport to South Australia + $275 filing fee) by [28 days from date of order]. 5 Australian Consumer Law s 51; Sale of Goods Act 1896 (Qld) s 15. 6 nemo dat quod non habet. -- 3 of 3 --