Campbell v Lane (No 2) [2013] QCATA 307

CITATION: Campbell v Lane (No 2) [2013] QCATA 307 PARTIES: Mr Don Campbell Ms Fiona Campbell (Applicant) v Miss Amy Lane (Respondent) APPLICATION NUMBER: APL267-13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: K Cullinane QC, Judicial Member DELIVERED ON: 24 October 2013 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – CONSUMER – where respondent purchased a horse from the applicants – where respondent claims the horse was lame and not ‘fit for purpose’ – where s 55 of the Australian Consumer Law (Queensland) provides that, in trade or commerce, suppliers must guarantee that goods are reasonably fit for any disclosed purpose, and for any purpose for which the supplier represents that they are reasonably fit – where applicants made representations that the horse was suitable as a show hack and that the horse had never had any problems with its legs – where respondent commenced proceedings in the Tribunal for purchase price and other associated expenses – where Tribunal found respondent had established claim – where applicants seek leave to appeal that decision – whether Tribunal erred in its decision – whether leave to appeal should be granted Fair Trading Act 1989 (Qld) ss 4B(2), 16 Australian Consumer Law (Queensland) s 55 -- 1 of 6 -- 2 Competition and Consumer Act 2010 (Cth) Schedule 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. REASONS FOR DECISION [1] The Applicants seek leave to appeal against a decision of the Tribunal of 27 May 2013 ordering the Applicants to pay to the Respondent the sum of $12,975.00. [2] The matter is a minor civil dispute. [3] Leave to appeal is necessary pursuant to section 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 (the Act). [4] For leave to be granted some good reason must be shown. This may be because the matter raises some question of general importance or because leave should be granted to correct an injustice or for some other reason. [5] The dispute between the parties arises out of the sale of a horse by the Applicants to the Respondents. [6] The Applicants placed an advertisement for sale of a horse which was described as ‘clean sound legs, vet check welcome’. [7] The Respondent wished to acquire a horse as a show hack. [8] She went to the Applicants’ place where she rode the horse. She arranged for a pre-purchase examination by a veterinarian suggested by the applicants. This examination did not include any x-rays. [9] The Respondent sent an e-mail to the Applicants asking whether the horse had ever had any problems with its legs and whether she should obtain x-rays. Ms Campbell replied that the horse had never had any problems with its legs and that whilst x-rays would be reasonable if the horse was being acquired as an eventer or a performance horse the cost would not be justified in this case. [10] The Respondent moved the horse to Cairns where it spelled in a paddock for two months. Shortly after being ridden the horse became lame. The Tribunal found that the horse has been lame since that time and is valueless. The cause of this and whether any condition was present at the time of purchase was the subject of some contention between veterinarians. I will return to this and the Tribunal’s findings shortly. -- 2 of 6 -- 3 [11] The Respondent purchased the horse for $12,000.00 after the email exchange which took place in late July. [12] It was not in contention that the Applicants carried on the business of selling horses. [13] The Tribunal found that the Applicants were in breach of the implied statutory guarantee provided for in section 55 of the Australian Consumer Law (Queensland).1 This provides as follows: (1) If: (a) a person (the supplier) supplies, in trade or commerce, goods to a consumer and (b) the supply does not occur by way of sale by auction; there is a guarantee that the goods are reasonably fit for any disclosed purpose, and for any purpose for which the supplier represents that they are reasonably fit. (2) A disclosed purpose is a particular purpose (whether or not that purpose is a purpose for which the goods are commonly supplied) for which the goods are being acquired by the consumer and that: (a) the consumer makes known, expressly or by implication to; (i) the supplier; (ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made; or (b) the consumer makes known to the manufacture of the goods either directly or through the supplier or the person referred to in paragraph(a)(ii) (3) This section does not apply if the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill or judgment of the supplier, the person referred to in subsection (2)(a)(ii)or the manufacturer ,as the case may be. [14] The Applicants set out a number of grounds of appeal which would be advanced if leave was granted. These are dealt with largely in the order they appear. [15] As will be seen some involve misconceptions of the effect of section 55 whilst others are not supported by the evidence. None, in my view, are of merit. [16] One of the complaints made is that the Tribunal made a finding that the Respondent was inexperienced in the sale of horses when there was no evidence of this. This was relevant to a finding under sub-section (3) above. [17] The Respondent gave evidence that she had ‘only ever had two horses’ and had never had to get x-rays before. She said that she had only had horses since she was 15 and was ‘not that well versed in the process of 1 See Schedule 2 to the Competition and Consumer Act 2010 (Cth); Fair Trading Act 1989 (Qld) ss 4B(2), 16. -- 3 of 6 -- 4 buying a horse’. See pages 1-14 and 35-40 of the transcript of proceedings. This evidence justifies the finding made. [18] The Applicants seek to put evidence before the Tribunal on appeal said to show that the Respondent was not inexperienced in this field. However the evidence is not in my view inconsistent with the Respondent’s evidence. There is nothing to suggest this evidence could not have been obtained prior to the hearing. This claim must be rejected. [19] There is a challenge to the finding that the Applicants had made a representation. As the Tribunal identified in its judgment, Mr Campbell acknowledged that his opinion was that the horse was suitable as a hack. The finding that Mr Campbell stated in the pre-purchase examinations that the horse was suitable as a show hack was plainly open on the evidence of the Respondent. In addition there are the representations in the advertisement and the e-mail as to the soundness of the horse’s legs and the statement that the horse had never had any problems with its legs. These of course have to be understood in the context of the indication by the purchaser that she wanted a horse for use as a show hack. This was a disclosed purpose for the purposes of the section 55. [20] Similarly the claim that the finding under sub-section (3) should not have been made because only a qualified veterinarian could have made representations about the horse’s health, and the soundness of its legs cannot be accepted. This is entirely without merit. [21] There is a claim that the vet check report (obtained from the veterinarian suggested by the Applicants) was not complete and that if the final page had been placed before the Tribunal it might have contained further material about the horse. I find it difficult to understand this. At pages 1-21 & 45-47 of the first day’s transcript (going over to the following page) Mr Campbell is recorded as handing the fifth page to the Tribunal. In any case there is no evidence to support the speculative claim by the Applicants. [22] Ground 4 of the grounds which would be advanced if leave was given contains two challenges to the finding there was a guarantee. Firstly it is said that all of the facts and information required to give a guarantee were not within the knowledge, skill or expertise of the Respondents. The argument is misconceived. The facts necessary to give rise to the guarantee are contained in the section. The additional bases are that any guarantee is limited only to certain factual matters. [23] This argument and the further matters raised in Ground 4 do not address the findings of the Tribunal. The obtaining of the vet check does not preclude the guarantee which arises by operation of the statute. [24] Ground 5 involves a repetition of earlier grounds. -- 4 of 6 -- 5 [25] Grounds 7 and 8 are challenges to the finding of fact that the horse was not fit for the purpose for which it was acquired and which was made known at the time. The findings were clearly open. Ground 10 is similarly a challenge to a finding of fact which was open. Insofar as Ground 10 might be regarded as raising a claim that it would have been unreasonable for the Respondent to rely upon the representations of the Applicants having regard to the vet check it is obvious that the vet check by a veterinarian (suggested and arranged by the Applicants) was quite limited and did not include x-rays something which was a consequence of Ms Campbell’s reassurance that this would be unnecessary having regard to the purpose for which the Respondent was acquiring the horse. [26] Ground 12 challenges the Tribunal’s acceptance of the evidence of the veterinarian Condon as opposed to the evidence of the other vet Zedler. The Tribunal preferred the evidence of Condon because he had seen the horse and examined it. This is a reasonable and rational ground. The finding made was that although at the time of sale the horse was not lame, the condition it suffered from at the time of sale was navicular syndrome which led to lameness two months later. Zedler expressed a somewhat different opinion. He thought the condition could have developed some time after sale as a result of laminitis something Condon excluded. [27] Ground 11 requires some particular attention. The Applicants claim that they were not afforded due process in relation to the evidence of Condon. On the first day of the hearing certain questions arose and the Applicants were permitted to obtain an affidavit from Condon on certain conditions one of which was that if he was prepared to give an affidavit he would have to be present on the resumed hearing to be cross-examined. [28] On the resumed hearing Condon was not present. The Applicants informed the tribunal that Condon required a substantial sum of money to appear. They could not afford to pay this but informed the Tribunal he was available to give evidence by phone. The Applicants had received a copy of his affidavit. There was some discussion between the Tribunal and Mr Campbell about Condon‘s evidence. [29] Although there was no express statement that Condon was not required for cross-examination there are statements by Mr Campbell to the effect that the further material from Condon did not add anything to Condon’s earlier affidavit. The further exchanges which took place before the Tribunal reserved its decision proceeded on the basis of the issues which arose from the expert evidence without any further evidence being called. [30] In the circumstances I am not persuaded that the Applicants were denied due process in relation to this aspect of the case. [31] The remaining grounds relate to the assessment of damages and are without merit. The assessment of damages was both justified and in some respects moderate. -- 5 of 6 -- 6 [32] I am not persuaded that the matter is one which calls for the grant of leave to appeal. [33] The application is refused. -- 6 of 6 --