Beecham Motors v Sure Shift Automatics [2011] QCATA 135

CITATION: Beecham Motors v Sure Shift Automatics [2011] QCATA 135 PARTIES: Beecham Motors v Sure Shift Automatics APPLICATION NUMBER: APL354-10 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member Andrew McLean Williams, Member DELIVERED ON: 7 June 2011 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal refused. CATCHWORDS: Minor Civil Dispute – where applicant seeks to disturb findings of fact – no error of fact or law identified 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 on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). -- 1 of 4 -- 2 REASONS FOR DECISION Senior Member Richard Oliver: [1] In this matter the Appeal Tribunal consisted of Mr McLean Williams, QCAT Member, and me. I have had the benefit of reading his reason in draft. I agree with his reasons, and his conclusions and the order he purposes. Andrew McLean Williams: [2] This is an appeal against the decision of an Adjudicator given at Sandgate on 26 November 2010 by which Beecham Motors was ordered to pay to Sure Shift Automatics the claim amount of $1,727.33 together with the QCAT application fee of $92.00, making for a total judgement sum of $1,819.23. [3] The case is one involving non-payment of an invoice for the sub-contracted rebuilding of an automatic transmission, which had been sent to Sure Shift Automatics by Beecham Motors in July 2010. An initial estimate had been given over the telephone that the cost to rebuild the transmission would be in the order of $1,800. After the transmission had been broken down and properly inspected by Sure Shift Automatics this was later revised upwards, to $2,600.00, which was communicated to Beecham Motors and accepted by Beecham Motors who authorised Sure Shift Automatics to proceed with these works. Sometime later, after the gearbox had been repaired and delivered by Sure Shift Automatics back to Beecham Motors it was then fitted by Beecham Motors into their customer’s vehicle, yet was then found to exhibit further faults. At this stage the vehicle was collected by Sure Shift Automatics and towed away for further work. At that time the problem was identified to be a fault in the solenoids (an electrical problem rather than a gearbox transmission problem), which was then also repaired by the Sure Shift Automatics. Sure Shift Automatics invoiced Beecham Motors for these solenoid repairs however was not paid for same, whereupon Sure Shift Automatics commenced an action to recover these costs before QCAT. Sure Shift Automatics was successful in this endeavour before the learned adjudicator hearing this matter, at Sandgate. [4] Pursuant to s 142 (3) of the QCAT Act, the leave of this appeal tribunal is necessary. [5] The question whether (or not) leave should be granted is usually one to be addressed in accordance with established principles: Is there a reasonably arguable case of error in the primary decision?1 Is there a reasonable prospect that Beecham Motors will obtain substantive relief?2 Is leave necessary in order to correct a substantial injustice to Beecham Motors caused by some error?3 Is there some question of general importance upon 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 2 Cachia v Grech [2009] NSWCA 232 at [13]. 3 QUYD Pty Ltd v Marvass Pty Ltd (supra). -- 2 of 4 -- 3 which further argument, and a decision of the appellate court or tribunal, would be to general public advantage?4 [6] Leave to appeal will ordinarily only be obtained in circumstances wherein there is some question of general importance upon which further argument, and a decision of the appellate tribunal would be to the public advantage; or, where there is a reasonably arguable case of error in the decision at first instance, and a reasonable prospect that Beecham Motors for leave would obtain further substantive relief. For reasons that will be revealed in the following paragraphs this case is however not one that falls under any of these criteria. [7] As was recognised by the High Court in Fox v Percy ([2003] HCA 22 at [32] per Gleeson CJ, Gummow and Kirby J) the duty of this appellate tribunal is solely to determine whether there is some error in the primary decision. It is not our task to decide where the truth lay as between the competing versions given by the parties. [8] By an Application for Leave to Appeal or Appeal filed on 10 December 2010 Beecham Motors now seek to overturn the original decision in favour of Sure Shift Automatics on grounds that the learned adjudicator made an error of law. In Beecham Motors’ written appeal submissions – as were filed on 29 March 2011 – it is identified that “The failure to fix the solenoids in the first place is a breach of contract and warranty”. It is this alleged error of law that the Beecham Motors now seeks to rely upon in order to found their appeal. [9] I am unable to accept Beecham Motors’ contention that the learned Adjudicator has made an error of law by his having failed to conclude that “failure to fix the solenoids in the first place amounted to a breach of contract and warranty”. That contention is misplaced for two reasons. Firstly, it is to be noted that the warranty offered by Sure Shift Automatics to Beecham Motors Pty Ltd in this instance clearly identifies that the warranty does not extend so far as to include electrical components, such as solenoids. The evidence reveals that this repair was undertaken by Sure Shift Automatics as a gesture of goodwill, given a longstanding business relationship between Beecham Motors and Sure Shift Automatics. Secondly, it is to be noted that in his decision that the learned adjudicator specifically dealt with the issue of Sure Shift Automatics not repairing the solenoids at the outset, here finding that Sure Shift Automatics was entitled to approach the problem conservatively and not replacing the solenoids until the second occasion. In part, the learned Adjudicator said: “As I said, my attitude towards the issue of how Mr Barlow dealt with the matter, meaning that he dealt with it in a conservative way to start with, I don’t see that there’s anything wrong with the vehicle having to go back again and have the solenoids 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. -- 3 of 4 -- 4 replaced. These are expenses that Mr Matthews just had to wear as a result of having his gearbox replaced in my view. Therefore, I’m going to allow the applicant’s claim and the claim was for $1,727.33 plus the application fee, so that’s $1,819.23.” [10] Consistent with the observations of the High Court in Fox v Percy,5 the learned adjudicator was entitled to find in the manner that he did. There is no demonstrable error whether of fact or law in his so finding. Conclusions & Order [11] As Beecham Motors has been unable to demonstrate any error on the part of the learned Adjudicator, and nor is any error apparent on the face of the record, leave to appeal must be refused. 5 [2003] HCA 22 at [32] per Gleeson CJ, Gummow and Kirby JJ. -- 4 of 4 --