Birt v Caz Corporation Pty Ltd & Jodaco Investments Pty Ltd t/as The Spray Shop [2013] QCATA 308

CITATION: Birt v Caz Corporation Pty Ltd & Jodaco Investments Pty Ltd t/as The Spray Shop [2013] QCATA 308 PARTIES: Mr Rory Patrick Birt (Applicant) v Caz Corporation Pty Ltd & Jodaco Investments Pty Ltd t/as The Spray Shop (Respondents) APPLICATION NUMBER: APL271 -13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe OAM, Senior Member DELIVERED ON: 22 October 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where applicant not satisfied with work done – where applicant did not allow the respondent an opportunity to repair allegedly faulty work – whether a failure to mitigate loss - whether grounds for leave to appeal 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 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 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Minister for Immigration and Citizenship v -- 1 of 3 -- 2 SZMDS & Another (2010) 240 CLR 611 [2010] HCA 16 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 Birt owns a 1986 Toyota Landcruiser. In February 2012, he took the car to The Spray Shop to have some rust cut out, rust proofing and a respray. The Spray Shop charged Mr Birt $2,724.48, which he paid. [2] There were problems with the job. It took a long time. The Spray Shop broke the windscreen, so it refunded $496. Mr Birt says that The Spray Shop never fixed some leaks. He also says that rust reappeared shortly after The Spray Shop finished the work and returned the car to him. Mr Birt therefore filed a claim that The Spray Shop refund the balance of the money he paid for the work. Mr Birt„s claim was dismissed because the learned Adjudicator found that he had not given The Spray Shop an opportunity to rectify the defective work. [3] Mr Birt wants to appeal that decision. He says that he did try to get The Spray Shop to rectify the work but he was unsuccessful. He says that a consumer who has experienced a major problem with a service has the right to “determine the course of action” to remedy the situation. [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 [5] The appeals tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.5 An appellate tribunal may interfere if the conclusion is „contrary to compelling inferences‟ in the case.6 However, the appeal tribunal must exercise its own discretion 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. 5 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. 6 Chambers v Jobling (1986) 7 NSWLR 1 at 10. -- 2 of 3 -- 3 when considering whether the original decision maker was in error. As the High Court said in Fox v Percy: In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.7 [6] I have read a copy of the transcript and the documents on file. Although reasonable minds may differ about the conclusions that might be drawn from this material, the learned Adjudicator‟s was not in error simply because he preferred one possible conclusion to another8. The Appeal Tribunal does not give leave simply because a party wants to re-argue the case. [7] The learned Adjudicator made the point that the car was 26 years old. The parties agreed that it was already rusty. They also agreed that cutting rust from a car may send the problem into remission, but rust will certainly recur. The learned Adjudicator thought that the new rust was limited in size and extent, given the age of the car and that it was nine months after The Spray Shop finished its work. The evidence is capable of supporting the learned Adjudicator‟s decision. There is nothing in the transcript to persuade me that the learned Adjudicator should have taken a different view of the facts. [8] Mr Birt is mistaken when he says that he can determine how he deals with the problem. A party claiming the assistance of a court or tribunal must mitigate his loss9. That means that Mr Birt should have taken reasonable steps to reduce his loss. One of the accepted ways of doing that is to give the service provider another chance to fix the problem10. Mr Birt did not give The Spray Shop that opportunity. The learned Adjudicator was correct in finding that this was a major obstacle to Mr Birt‟s application. [9] There is no question of general importance that should be determined by the appeals tribunal. There is no reasonably arguable case that the learned Adjudicator was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused. 7 Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ. 8 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611; [2010] HCA 16 at [131]. 9 Lindgren et al Contract Law in Australia I1986 paragraphs [2133] and [2135]; McGregor on Damages 14th edition paragraphs [209], [213]. 10 See, for example, s 259 Australian Consumer Law -- 3 of 3 --