The Shack Fine Coffee and Fare v Goudie

[2014] QCATA 115

CITATION: The Shack Fine Coffee and Fare v Goudie [2014] QCATA 115

PARTIES:	Wannabird Investments t/as The Shack Fine Coffee and Fare (Applicant/Appellant)
v
Kylie Goudie (Respondent)

APPLICATION NUMBER: APL270-13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Thomas, President

DELIVERED ON: 8 May 2014

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The application for leave to appeal is granted.

2.    The appeal is allowed.

3.    The matter is returned to the tribunal to determine the amount of damages owed to the respondent for breach of contract, with regard to further evidence if necessary, according to law.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where parties contracted for sale of mobile eftpos machines – where machines to be installed, and profits shared by parties to contract – where respondent never received any profits –  where tribunal ordered applicant return money paid to respondent purchaser, to return respondent to position she was in before agreement entered into – whether correct measure of damage – whether leave to appeal should be granted – whether reason to upset findings of tribunal: that applicant in breach of contract – whether appeal should be allowed

Queensland Civil and Administrative Act 2009 (Qld), s 32, s 142(3)(a)(i)

Chambers v Jobling (1986) 7 NSWLR 1, cited

Dearman v Dearman (1908) 7 CLR 549, cited

Fox v Percy (2003) 214 CLR 118, cited

Pickering v McArthur [2005] QCA 294, applied

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 (Qld) (QCAT Act).

REASONS FOR DECISION

1. Ms Goudie paid Wannabird Investments $2,760 to buy two mobile eftpos machines. Wannabird was going to place these machines in a taxi. The taxi driver and Wannabird were to share the profits 50/50 and Wannabird was to give Ms Goudie 40% of its share.

2. Ms Goudie received nothing from Wannabird, so she filed a claim for the return of her investment. A Registrar, sitting as an ordinary member of the tribunal, allowed her claim and ordered Wannabird pay Ms Goudie $2,894.50.

3. Wannabird seeks to appeal that decision. It says that the learned Registrar erred in finding that there was a contract between Ms Goudie and Wannabird; that there was an agreement between Wannabird and the taxi driver, but this agreement is “almost null and void”. It submits that the tribunal should explain to Ms Goudie that all investments carry risk and she should accept her loss.

4. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] The principles the appeal tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as his Honour then was) in Pickering v McArthur:

   There are numerous authorities, in varying language but with unvarying emphasis, that leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]

   [1]QCAT Act, s 142(3)(a)(i).

   [2][2005] QCA 294 at [3].

1. The appeal tribunal will not usually disturb findings of fact on appeal if it considers the conclusions of the decision maker below were able to be made on the evidence before them,[3] however may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[4]  When considering whether the original decision maker was in error, the appeal tribunal must exercise its own discretion. 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.[5]

[3]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.

[4]Chambers v Jobling (1986) 7 NSWLR 1 at 10.

[5]Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.

1. Mr Blyth, for Wannabird, admitted that he received Ms Goudie’s money. The learned Registrar had copies of text messages that refer to a contract Wannabird wanted Ms Goudie to sign. When Ms Goudie asked for the taxi driver’s contact details, Mr Blyth texted: “For what reason, your agreement is with me”.[6] The evidence can support the learned Registrar’s finding that there was a contract between Ms Goudie and Wannabird. There is nothing in the transcript to persuade me that the learned Registrar should have taken a different view of the facts.

   [6]Text sent 3 May 2012, number 13 on pages of text messages.

1. I understand Wannabird’s second argument to be a submission that it did not breach the contract: Ms Goudie paid for two mobile eftpos machines to be placed in the taxis and that is what she received. The learned Registrar found that the mobile eftpos machines were generating a profit, none of which was shared with Ms Goudie in accordance with the agreement.[7] She also found that Wannabird continued to use Ms Goudie’s machines and that there was a breach of contract by Wannabird.

   [7]Decision, page 2, lines 44 -47.

1. The learned Registrar ordered Wannabird repay the cost of the machines because that would return Ms Goudie to the position she was in before the agreement was entered into.[8] Of course, that is not the appropriate remedy, because there is no suggestion that the contract was void from the beginning.  The learned Registrar was in error; leave to appeal should be granted and the appeal allowed.

   [8]Decision, page 3, line 1.

1. The measure of Ms Goudie’s damages for breach is 40% of its share of the total profits. The matter should be returned to the tribunal to determine the amount of damages owed to the respondent for breach of contract, with regard to further evidence if necessary, according to law.