Benck Marketing Supplies Pty Ltd t/as Patio World v Trudy Thiemann [2012] QCATA 164

CITATION: Benck Marketing Supplies Pty Ltd t/as Patio World v Trudy Thiemann [2012] QCATA 164 PARTIES: Benck Marketing Supplies Pty Ltd t/as Patio World (Applicant/Appellant) v Trudy Thiemann (Respondent) APPLICATION NUMBER: APL462-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President DELIVERED ON: 30 August 2012 DELIVERED AT: Brisbane ORDERS MADE: Application for leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – contractual agreement – failure to deliver materials within reasonable time – termination of contract due to breach – Magistrate preferred evidence of one party over another – Supplier ordered to repay monies paid under contract – no error in decision – leave to appeal refused Queensland Civil and Administrative Tribunal Act 2009, ss 32, 142(3)(a)(i) 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 APPEARANCES and REPRESENTATION (if any): -- 1 of 4 -- 2 This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] In February 2011 Ms Thiemann signed a contract with Patio World (the trading name of Benck Marketing Supplies Pty Ltd) for the supply of materials to construct a patio and deck. Under the contract she paid $10,495.00 – the full price – by 7 April 2011. [2] In June 2011 she wrote terminating the contract after, in her words, “…waiting two and a half months for all the correct materials to be delivered.” [3] Up until that time she had made, she said, over forty telephone calls to Patio World and also sent a series of emails trying to resolve problems that had arisen. She did receive at least four deliveries of materials but most were, she alleged, either incorrect or of poor or unsuitable quality. She also gave evidence that staff from Patio World attended her home on at least a dozen occasions to identify the materials that had not been provided. [4] She brought proceedings in QCAT’s minor civil disputes jurisdiction to recover what she had paid under the contract. The matter came on before an Acting Magistrate sitting as a QCAT Member on 21 November 2011. [5] After hearing oral evidence and submissions from Ms Thiemann and a representative of Patio World the learned Magistrate found that Patio World was obliged, under the contract, to deliver the materials within a “reasonable time” which, in his view, would have been about 1 or 1.5 months. Patio World’s failure to do that entitled Ms Thiemann to cancel the contract, whereafter she was entitled to recover all money she had paid. [6] Patio World seeks leave to appeal that decision. Its grounds of appeal assert that the only materials which were delayed were three posts; and, that all the other material had been specially cut for this particular job, and had been used by Ms Thiemann or her builder and are not, now, reusable. [7] The Appeal Tribunal directed that the matter be heard and determined on the papers, and that the parties exchange written submissions. Patio World’s submissions, signed by it’s Group General Manager, are very terse: they contain an admission that materials “...were not delivered in full and in an unreasonable length of time” but then assert that materials which have been delivered have been altered and used and Patio World should not have to refund monies for items which have declined in value. Rather, Patio World says, a list of materials on site “…should be determined of usable and not usable to ascertain a value of materials”. [8] In her submissions and response Ms Thiemann asserts the materials are of the same value and condition as when delivered and have been in -- 2 of 4 -- 3 storage; and, that the only materials which have been altered are joists and bearers which her builder altered after waiting two weeks to start the job. These materials are nevertheless, she submits, still in a reasonable state. [9] In the QCAT Act Parliament has made it clear that so far as possible disputes in the minor civil disputes jurisdiction should, in the interest of economy and finality, be disposed of by QCAT Adjudicators and Magistrates sitting as QCAT Members. [10] For that reason parties in this jurisdiction have no automatic right of appeal but must seek what the QCAT Act calls “leave” from the Appeal Tribunal1. Before being allowed to proceed with an appeal an applicant must, therefore, show that the decision in question is effected, arguably at least, by an error resulting in a substantial injustice and warranting a grant of leave. [11] 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?2 Is there a reasonable prospect that the applicant will obtain substantive relief?3 Is leave necessary to correct a substantial injustice to the applicant caused by some error?4 Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?5 [12] Patio World’s submissions do not attempt to address the usual tests for a grant of leave, or these principles. Rather, they attempt to revisit the evidence which was presented to the learned Magistrate, and to argue that he should have come to a different conclusion. [13] It is obvious from the learned Magistrate’s oral Reasons, given at the end of quite a lengthy hearing in which he took care to ensure that both parties had the opportunity to present their case, that he accepted Ms Thiemann’s evidence and also accepted that it was an implied term of the contract between Ms Thiemann and Patio World that delivery would take place within a reasonable period. [14] He determined that a reasonable period was 1-1.5 months. He did so after he had heard from both parties. Nothing in the evidence suggests that conclusion was not reasonably open to him, or that it involves some error in respect of his interpretation of the contract, or the facts and circumstances surrounding it. [15] Nor was he in error in determining that, in the circumstances, Ms Thiemann was entitled to cancel the contract, and had lawfully done so. Once he decided that delivery of the materials had been the subject of 1 Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(i). 2 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 3 Cachia v Grech [2009] NSWCA 232 at 2. 4 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 5 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. -- 3 of 4 -- 4 excessive delay and had also been disorganised and haphazard, that finding was also reasonably open. [16] The nub of Patio World’s complaint is that it has to return all the money Ms Thiemann paid under the contract, when some of the materials it delivered may not be of any particular use to it. Again, there was evidence about that before the learned Magistrate but he again, it may be inferred, was persuaded that Ms Thiemann, as the entirely innocent party, was entitled to damages measured against monies she had paid which were, in truth, thrown away on something which was no use to her. [17] It follows that nothing in the proceedings or the learned Magistrate’s Reasons revealed an error of the kind that would warrant granting Patio World leave to appeal. [18] The application for leave must be refused. -- 4 of 4 --