Chai Siew Cheng Pty Ltd v Manasarova Pty Ltd [2012] QCATA 74

CITATION: Chai Siew Cheng Pty Ltd v Manasarova Pty Ltd [2012] QCATA 074 PARTIES: Chai Siew Cheng Pty Ltd ABN 58 145 253 t/as Glenden Pharmacy (Applicant/Appellant) v Manasarova Pty Ltd ACN 110 242 601 (Respondent) APPLICATION NUMBER: APL443-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President DELIVERED ON: 30 April 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. Application for leave to appeal by Chai Siew Cheng Pty Ltd refused. 2. Application for leave to appeal by Manasarova Pty Ltd refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where the Applicant had brought proceedings claiming it had not received stock as per the contract of sale – where the Applicant had brought proceedings claiming it had not received a vaccine refrigerator as per the contract of sale – where the Magistrate accepted the claim for stock but rejected the claim for the cost of the vaccine fridge – whether the Magistrate made an error of fact in his findings about the vaccine refrigerator and about the stock Queensland Civil and Administrative Tribunal Act 2009, ss 28, 32 Cachia v Grech [2009] NSWCA 232 Chambers v Jobling (1986) 7 NSWLR 1 Dearman v Dearman (1908) 7 CLR 549 -- 1 of 5 -- 2 Fox v Percy (2003) 214 CLR 118 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Lovell v Lovell (1950) 81 CLR 513 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 TNT Management Pty Ltd v Brooks (1979) 23 ALR 345 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 (QCAT Act). REASONS FOR DECISION [1] In April 2011 Manasarova Pty Ltd agreed to sell its pharmacy business at Glenden to Chai Siew Cheng Pty Ltd. The contract provided that the purchaser was required to pay for any stock valued, after a stocktake, at over $30,000; and, that the sale would include a ‘vaccine fridge’. [2] Chai Siew Cheng brought proceedings in QCAT’s Minor Civil Disputes jurisdiction against Manasarova claming that it was ‘cheated’ out of stock to the value of $2,622.09, and that it did not receive a vaccine fridge and should be paid damages calculated by reference to the cost of a new vaccine refrigerator, namely $2,645.50. [3] The matter came on for hearing before a Magistrate sitting as a QCAT Member. I have listened to the audio transcript of the hearing, which is over two hours long. Chai Siew Cheng was represented by its Director, Ms Teoh, and Manasarova by its Business Development Manager, Ms Smith. At the conclusion of the hearing, the learned Magistrate accepted Ms Teoh’s claim for stock, but rejected the claim for the cost of the vaccine fridge. He gave lengthy reasons for his decision, which were recorded. [4] He also allowed both parties, as the audio confirms, ample opportunity to give evidence about each matter. It was clear from the evidence that, as he observed in his reasons, the stocktaking had been long, difficult and confused because, he found, of the unavailability of computer information which could have recorded barcodes, and the like. [5] The learned Magistrate concluded that it was unclear what the correct figure for the value of stock after the stocktaking might be, and that the exercise ‘…left open a great deal of uncertainty’. The evidence of both parties at the hearing justified that conclusion. [6] Ultimately, however, the learned Magistrate accepted that stock had been taken by Manasarova’s representative from the premises around the time -- 2 of 5 -- 3 of the stocktake, in circumstances where it was not accurately or fully recorded and, on the balance of probabilities, he was persuaded that Ms Teoh had established that element of her claim. [7] He was not persuaded, however, that her claim for a vaccine fridge should be upheld. As the evidence showed, and as he explained in his reasons, while the contract referred to a ‘vaccine fridge’, the pharmacy was not what the Pharmacy Board calls a ‘quality care pharmacy’ and, although the refrigerator did not meet the standards required in a pharmacy of that kind, that was unnecessary and the refrigerator actually sold served its purpose; and hence, under the contract, the description of it did not involve any misrepresentation. [8] Chai Siew Cheng seeks leave to appeal that decision, in submissions prepared by Ms Teoh. In her application and her written submissions she essentially repeats the argument she made before the learned Magistrate. [9] In its submissions Manasarova, through its director Ms Armstrong, seeks to uphold the decision about the vaccine fridge but also, in effect, seeks leave to appeal the decision about the stock and, instead, to obtain an order that Chai Siew Cheng pay Manasarova $3,437.95 for stock which, Manasarova alleges, the purchaser received over and above the contract ‘stock’ figure of $30,000. [10] No actual application for leave to appeal has been received from Manasarova but it is appropriate, in light of this Tribunal’s statutory obligation to act with as little formality and technicality as possible1 to address the matter in these reasons. [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] The evidence and submissions presented by Ms Teoh and Ms Smith to the learned Magistrate about the circumstances of the stocktaking illustrated the confusion and uncertainty which surrounded it, and justified his conclusion that the correct figure for the value of stock was left unclear. It may also be inferred, however, that he was persuaded by the evidence about the circumstances in which Manasarova’s representative 1 Queensland Civil and Administrative Tribunal Act 2009, s 28(3)(d). 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 5 -- 4 took some stock that Chai Siew Cheng did not, in fact, receive all the stock to which it was entitled under the contract. [13] In doing so, it may be assumed he was persuaded that the circumstances in which Ms Smith took the stock left Ms Teoh with insufficient knowledge about what had been taken, or its value; and that, on the balance of probability, stock had been taken which reduced the total value of all stock transferred under the contract to something in the vicinity of the figure which she claimed – ie, $30,000 less about $2,600. [14] 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.6 [15] It is not enough that the Appeal Tribunal might come to the view that, had its members been sitting in the matter originally, they may have reached a different conclusion. It must be shown that there has been a mistake in assessing the factual evidence, like a failure to take some material evidence into account, before the Appeal Tribunal can interfere7. [16] An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’8 in the case. 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.9 [17] It is also important to keep in mind that in cases like these the standard test for weighing and applying the evidence is not one a mathematical or scientific exercise, but based on a reasonable search for the truth in the circumstances of each particular case.10 [18] It cannot be said that the learned Magistrate’s conclusion is in any way contrary to compelling inferences arising from the evidence he heard, or involves any apparent error in construing that evidence. This was a matter of some complexity arising, as the evidence showed, out of circumstances which were themselves complex, confusing and uncertain. It is plain that he was called upon to do the best he could, in terms of reaching a just and equitable decision, with the confusing evidence he had and that he took care to both give the parties a fair hearing, and to explain the reasons for his decision. 6 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. 7 Lovell v Lovell (1950) 81 CLR 513. 8 Chambers v Jobling (1986) 7 NSWLR 1 at 10. 9 Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ. 10 TNT Management Pty Ltd v Brooks (1979) 23 ALR 345 at 349-350. -- 4 of 5 -- 5 [19] In light of all those factors there is no basis for interference with his decision about the stock – or, in particular, to overturn the decision and replace it with one in favour of Manasarova, as it seeks. [20] The same conclusions apply to the learned Magistrate’s findings about the vaccine refrigerator. It is clear that the reference to it in the contract was not expressed in terms which meant that it must meet standards only imposed upon certain kinds of pharmacies, of which this was not one. Although the learned Magistrate did not explain his findings in that way, that was a conclusion which reasonably supported his final decision to reject that aspect of Chai Siew Cheng’s claim. [21] For these reasons, both applications for leave to appeal must be refused. -- 5 of 5 --