Evans v Flash Cab Australia Pty Ltd [2013] QCATA 59

CITATION: Evans v Flash Cab Australia Pty Ltd [2013] QCATA 59 PARTIES: Andrew Cameron Trevor Evans (Applicant/Appellant) V Flash Cab Australia Pty Ltd ABN 44 065 258 871 (Respondent) APPLICATION NUMBER: APL271 -12 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe, Senior Member DELIVERED ON: 25 February 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. Appeal allowed. 3. Flash Cab Australia Pty Ltd shall pay Andrew Cameron Trevor Evans $7,125.56 (claim of $6,581.00 plus interest at 10% for 251 days plus $92.00 filing fee) by 11 March 2013 CATCHWORDS: MINOR CIVIL DISPUTE – where respondent company claimed that it did not exist – where respondent‟s evidence was that company did exist but did not trade – where claim dismissed because company did not exist - 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 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. -- 1 of 3 -- 2 REASONS FOR DECISION [1] In 2005, Mr Evans had a car modified by Flash Cab Australia Pty Ltd. In 2011, Mr Evans noticed rust developing in the parts of the car that had been modified. He asked Flash Cab to repair the rust but it refused to do so. [2] Mr Evans applied to the tribunal for an order that Flash Cab pay the costs of repairing the rust. The tribunal ordered, and Mr Evans provided, two written reports about the cause of the rust. At the hearing, after mediation and two false starts, Mr Cooper, representing Flash Cab, told the learned Adjudicator that the company “did not exist.” The learned Adjudicator dismissed Mr Evans‟ application but told him “if you do find something that indicates the company is still active, then…you can renew the matter” [3] Mr Evans wants to appeal that decision. He says that the learned Adjudicator erred in finding that Flash Cab did not exist and, therefore, could not be the subject of an order. Mr Evans also says that the learned Adjudicator erred in denying Mr Evans the opportunity to test Flash Cab‟s evidence before dismissing the claim. [4] Because this is an appeal from a minor civil dispute, Mr Evans must seek leave to appeal. The tribunal may grant leave if the dispute raises a question of general importance and the public would benefit from a decision on that question. It may also grant leave if Mr Evans shows a reasonably arguable case of error and a reasonable prospect that he will obtain substantive relief if the error is corrected. [5] Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.1 [6] An appellate tribunal may interfere, however, if the conclusion at first instance is „contrary to compelling inferences‟ in the case.2 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.3 [7] Although Mr Cooper told the learned Adjudicator that the company was not still in existence, his later evidence showed that this statement was wrong and the company was, in fact, still in existence. He told the learned Adjudicator that the “we” did not wind up the company4. He told the 1 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. 2 Chambers v Jobling (1986) 7 NSWLR 1 at 10. 3 Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ. 4 Audio transcript part 2 at 12:33 -- 2 of 3 -- 3 learned Adjudicator that the “ACN number (sic) was still there, but we don’t trade it.”5 There is a clear difference between a company that does not exist and a company that has been mothballed. Flash Cab does exist but it does not trade. It has been mothballed. The learned Adjudicator could have made an order against the company and his decision to dismiss Mr Evans‟ claim on that basis was an error. [8] As I have already observed, Mr Evans produced two reports to show that Flash Cab‟s faulty work caused the rust. The only material to contradict that evidence is an email from a Mr Kite6 pointing out that the warranty “we” offer is limited to one year from the date of conversion, that they cannot be responsible for damage that may occur such a long time after the vehicle left the factory and that subsequent impact damage may be a factor. I find this evidence self serving and unhelpful. I prefer the independent evidence from Main Street Smash Repairs and B & M Smash Repairs, both of which report that the rust was due to faulty preparation. [9] Flash Cab had a duty to carry out the modification in a good and workmanlike way. It did not do so. I have not seen the terms of the one year warranty that Mr Kite refers to in his email so I am not persuaded that Flash Cab can rely on it to avoid responsibility for Mr Evans‟ loss. Flash Cab should pay the costs of rectifying its faulty work. [10] I accept that the quote from B & M Smash Repairs is a proper estimate of the cost of repair. [11] Leave to appeal is granted and the appeal allowed. Flash Cab Australia Pty Ltd shall pay Andrew Cameron Trevor Evans $7,125.56 (claim of $6581.00 plus interest at 10% for 251 days plus $92.00 filing fee) by 11 March 2013. 5 Audio transcript part 3 at 00:39 6 Email K&M Kite to Flashcab Australia Pty Ltd dated 9 February 2011 -- 3 of 3 --