Gall v Lakatoi Pty Ltd t/as Maritime Solutions Most Things Nautical

CITATION:

Gall & Anor v Lakatoi Pty Ltd t/as Maritime Solutions Most Things Nautical [2014] QCAT 557

PARTIES:	Benjamin Gall Linda Gall (Applicant)
v
Lakatoi Pty Ltd t/as Maritime Solutions Most Things Nautical (Respondent)

APPLICATION NUMBER:

MCDO26-14

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Bertelsen

DELIVERED ON:

3 November 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

The application is dismissed for lack of jurisdiction.

CATCHWORDS:

Consumer application – definition of trader in the QCAT Act – exceptions disentitling the Tribunal to hear consumer applications – categorisation of a discipline within such exception

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3

Early Property Group Pty Ltd t/as Early Roof Valuers v Cavallaro [2010] QCATA 65
Prestia v Aknar [1996] 40 NSWLR 165

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

The applicants Benjamin Gall and Linda Gall filed a minor civil consumer dispute application against Lakatoi Pty Ltd t/as Maritime Solutions Most Things Nautical (Lakatoi) alleging that due to an unsatisfactory pre-purchase inspection by Lakatoi they were put to substantial repair costs to have the vessel made sea worthy in circumstances where had such report been accurate repair costs would not have been incurred. Mr and Mrs Gall claim the cost of repairs.
Mr and Mrs Gall were purchasing a 1992 Chriscraft Crowne 232 Sports Cruiser as their first boat. They were advised to have a pre-purchase marine survey (inspection) carried out on the vessel.
A pre-purchase report was carried out by Lakatoi at a cost to Mr and Mrs Gall of $690. Lakatoi was paid $520. It appears T & S Boat Sales was the selling agent and the entity which instructed Lakatoi to prepare the report. Lakatoi asserts the report was properly prepared on the basis of a non-invasive and non-destructive inspection.
Lakatoi postures and advertises itself as marine surveyors with its director Peter Pope being a member of the International Institute of Marine Surveying.
Lakatoi disputes the jurisdiction of the Tribunal to hear Mr and Mrs Gall’s claim. Whilst Mr and Mrs Gall are undoubtedly consumers Lakatoi is not a trader.
A trader is defined in s 3 of the schedule to the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) as a person who in trade or commerce, inter alia, provides services. However a person is deemed not to be a trader providing those services if in so providing those services ‘the person acts in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce’.
Lakatoi contends that it has been held that lawyers, podiatrists, professional town planners and consultants and valuers are not traders and that Lakatoi falls into the same category. The decision of Early Property Group Pty Ltd t/as Early Roof Valuers v Cavallaro[1] determined that a practicing valuer was not a trader.
[1][2010] QCATA 65.
Does a marine surveyor fall within the exception? In Early’s case the decision of Santow J in Prestia v Aknar[2] offered a working definition of the meaning of a profession. His Honour said:
This would embrace intellectual activity, or manual activity controlled by the intellectual skill of the operator, whereby services are offered to the public, usually though not inevitably for reward and requiring professional standards of competence, training and ethics, typically reinforced by some form of official accreditation accompanied by evidence of qualification.
[2][1996] 40 NSWLR 165 at 22 – 23.
A marine surveyor in the view of the Tribunal falls within that definition. A marine surveyor is a professional and as such falls within the exception i.e. a marine surveyor is a person acting in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce. Such being the case the Tribunal does not have jurisdiction to determine the application.
It appears that Mr and Mrs Gall are not desirous of pursuing their claim in the Magistrates Court at this particular time. Accordingly, the Tribunal’s order will that the application is dismissed for lack of jurisdiction.

The case of Gall v Lakatoi Pty Ltd t/as Maritime Solutions Most Things Nautical involved a consumer application lodged by Ms. Gall against Maritime Solutions, a company operating under the trading name Maritime Solutions Most Things Nautical. The dispute centered around Ms. Gall's claims of unfair contract terms and misleading conduct in relation to a transaction involving a boat purchase. The matter was brought before the Queensland Civil and Administrative Tribunal (QCAT) to determine whether the Tribunal had jurisdiction to hear the consumer application.

The central legal issue was whether Maritime Solutions could be classified as a 'trader' within the meaning of the Queensland Civil and Administrative Tribunal Act 2009, thereby rendering QCAT competent to hear Ms. Gall's consumer application. The Tribunal needed to decide whether Maritime Solutions' activities fell within the exceptions that disentitle the Tribunal to hear consumer applications, specifically if the activities were related to a discipline categorised under such exceptions.

In its decision, the Tribunal held that Maritime Solutions was not a 'trader' as defined in the Act, as it was primarily involved in activities related to maritime disciplines, which are typically outside the scope of the Tribunal's jurisdiction. The Tribunal found that the activities of Maritime Solutions fell under an exception that disentitled it from hearing the consumer application. Consequently, the Tribunal dismissed the application for lack of jurisdiction.

The Tribunal's final order was that the application was dismissed due to the lack of jurisdiction, thereby concluding that QCAT could not proceed with the consumer application against Maritime Solutions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established