Clifton v Tully [2011] QCATA 307

CITATION: Clifton v Tully [2011] QCATA 307 PARTIES: Ms Alanna Clifton (Applicant/Appellant) v Julianne Tully (Respondent) APPLICATION NUMBER: APL280-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member DELIVERED ON: 9 November 2011 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal refused. CATCHWORDS: Minor Civil Dispute – sale by description – whether the diamond ring was as described Queensland Civil and Administrative Tribunal Act 2009, s 142(3) 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): This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] On 22 August 2010 Ms Clifton purchased a half carat diamond ring from Ms Tully over the internet website EBay. The purchase price of the ring was $712. After about 55 days, she contacted Ms Tully telling her she was not -- 1 of 3 -- 2 satisfied with the ring and wanted to return it and get a refund. Ms Clifton then contacted the credit card company and had the credit card debit for the purchase of the ring reversed. [2] On 27 January 2011 Ms Tully filed an application in the minor civil disputes jurisdiction claiming $712 being the cost of the ring. She had refused to accept the ring back from Ms Clifton. [3] The matter came on for hearing before a Tribunal Adjudicator on 12 July 2011. After hearing from the parties and considering the documentary evidence produce he ordered that Ms Clifton pay $712 to Ms Tully. [4] From that decision, Ms Clifton has filed an application for leave to appeal or appeal. Leave to appeal is necessary because this is an appeal from a minor civil dispute proceeding.1 [5] 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 [6] In her grounds of appeal, Ms Clifton agitates the very issues that were before the learned Tribunal Member that is, that the ring was not as described in the advertisement for sale on Ebay. [7] To be clear the representation in the Ebay advertisement was “estimated colour and clarity to be “F” and “S12”. It is contended that ring was not as represented because in fact, two expert jewellers have provided evidence to the contrary. A Letter from Jewellery Valuation Consultants describes the ring as “Colour H” and Clarity P2 whereas Hofstays makes a reference to the chip on the cutlet as “FG/P3”. [8] Helpfully, a document was tendered during the hearing which explained the coding for colour and clarity. That document indicates that the difference in the advertised clarity and colour and that described by Jewellery Valuation Consultants is not significantly different. Colour “F” is described as “rare white” and colour “H” is white, there is very little in the gradation. Clarity “S12” includes a small inclusion whereas “P2” has a pique, which is an inclusion but a little larger. 1 Section 142(3). 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. -- 2 of 3 -- 3 [9] The learned Adjudicator when considering this evidence came to the conclusion the there was no “hint of misrepresentation or intended misrepresentation”. Impliedly he accepted that the ring did generally accord with the “estimated” description in the advertisement on Ebay. In addition the evidence before the Tribunal established the ring had an estimated value of $1,800 to $2,000. Although this is not strictly relevant to a sale by description it does support a finding that the difference in the advertised description and the actual description by an expert is of little consequence by reference to value. That conclusion was open to him on the evidence and I see no reason to interfere with that finding. [10] Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error? [11] There is no arguable case of error on the part of the learned Adjudicator because the decision was supported by the evidence before him. The evidence also establishes that there has been no substantial injustice to the applicant which requires correction by the Appeal Tribunal. [12] Leave to appeal should be refused. -- 3 of 3 --