Bariesheff v Go Dive Australia Pty Ltd [2011] QCATA 99

CITATION: Bariesheff v Go Dive Australia Pty Ltd [2011] QCATA 99 PARTIES: Mr Michael Bariesheff (Applicant/Appellant) v Go Dive Australia Pty Ltd (Respondent) APPLICATION NUMBER: APL374-10 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member DELIVERED ON: 12 April 2011 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal is refused. CATCHWORDS: Minor Civil Dispute – whether applicant induced by a misrepresentation – where findings of fact – query whether claim within definition of minor civil dispute Queensland Civil and Administrative Tribunal Act 2009, s 142(3) Fox v Percy [2003] HCA 22 Dearman v Dearman (1908) 7 CLR 549 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). REASONS FOR DECISION [1] On 13 February 2010 Mr Bariesheff purchased a Galileo dive pack from the respondent. The reason he says he purchased the dive pack was because it included a free diving course which had a value of about $600.00 and he would save on hiring of diving gear for the course. He paid for the dive pack over the telephone using an EFTPOS card. The -- 1 of 3 -- 2 transaction was conducted between himself and an agent for the respondent, Ian Bowen. [2] A few days later, on Monday 15 February 2010 Mr Bariesheff changed his mind about purchasing the dive pack and left a message on Go Dive’s answering machine stating:- “Do not put the gear together … I will be in in the afternoon, after lunchtime to discuss it.” [3] When he discussed it with Go Dive he told them he did not want to go ahead with the purchase and asked for a refund. Go Dive refused to give him a refund because, they said, the pack had been put together, tested it, and they had reordered a replacement. [4] As a consequence of this refusal Mr Bariesheff commenced a minor civil dispute proceeding claiming a refund of the monies paid. I’m uncertain as to whether this falls within the definition of a minor civil dispute because the definition means:- (b) A claim arising out of a contract between a consumer and trader… that is:- (ii) For relief from payment of money of a value not more than the prescribed amount [5] Here Mr Bariesheff’s claim is not for relief from payment but for a refund of money already paid after a contract had been concluded. In any event, whether the claim falls within the definition of a minor civil dispute will not be determinative of this appeal. [6] When the matter came on before the learned Adjudicator, Mr Bariesheff argued that he purchased the dive pack as a result of a misrepresentation made by Ian Bowen that it was cheaper to buy the pack which included the course to save on the hire of equipment which would be $200.00 per dive session. In fact, he found out from the Go Dive’s promotional material soon after he purchased the dive pack that it was only $50.00 per hire. He therefore concluded that it would be more economical to hire rather than buy. On the basis of this misrepresentation as to the cost of hire, he contended, he had been mislead into buying the pack and therefore sought to set the transaction aside presumably on the basis of a misrepresentation. [7] The learned Adjudicator was initially sympathetic to Mr Bariesheff’s position, but when the representative for Go Dive brought to his attention a letter sent by Mr Bariesheff to Go Dive soon after 19 February 2010, it became abundantly clear that he was not relying on any misrepresentation, but on the fact that his financial circumstances had changed, unexpectedly, and he would have to wait to purchase the equipment. -- 2 of 3 -- 3 [8] As a consequence of that information, the learned Adjudicator rejected Mr Bariesheff’s claim that he had been mislead and dismissed the application. [9] Mr Bariesheff then filed an application in the Tribunal for leave to appeal or appeal. Leave is necessary as this is an appeal, from a minor civil dispute proceeding.1 Leave will only be granted if Mr Bariesheff can identify some error on the part of the Tribunal Member in coming to the conclusion that he did2 or there is a substantial injustice. [10] It is evident from the learned Adjudicator’s reasoning that he accepted Mr Bowen’s evidence that Mr Bariesheff had been provided with all the information necessary for him to make an informed decision about whether he wanted to buy the dive pack or not, after having been out diving with Go Dive. Even if the representation was made about the hire cost of $200 per dive, this was not decisive, according to the contemporaneous evidence, of Mr Bariesheff’s decision to try and get out of the deal. The learned Adjudicator’s decision turned on a question of fact which will not be easily interfered with by this Appeal Tribunal.3 [11] The submissions filed by Mr Bariesheff simply reiterate the matters that were put before the learned Adjudicator and did not assist in clarifying any error of law or fact on his part. [12] Mr Bariesheff has not identified any error on the part of the learned Adjudicator and as a consequence, the leave to appeal must be refused. 1 QCAT Act, section 142(3). 2 Fox v Percy [2003] HCA 22 at [32] per Gleeson CJ, Gummow and Kirby JJ. 3 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 197 ALR 201 at 207, 208. -- 3 of 3 --