CITATION:	Mayne v King Developments Pty Ltd [2015] QCATA 160	

PARTIES:	Alan John Colburn Mayne
(Appellant)	
	v	
	King Developments Pty Ltd
(Respondent)	

APPLICATION NUMBER:	APL255-15	

MATTER TYPE:	Appeals	

HEARING DATE:	3 November 2015	

HEARD AT:	Brisbane	

DECISION OF:	Senior Member Stilgoe OAM 
Member Hughes	

DELIVERED ON:	10 November 2015	

DELIVERED AT:	Brisbane	

ORDERS MADE:	1.	Leave to appeal granted
2.	Appeal dismissed. 
	
CATCHWORDS:	APPEAL – CLAIM FUND – MOTOR DEALER - where questions of mixed law and fact – whether Tribunal applied correct legislation – where legislation in force at time of sale – where claim for false representations and not defect and therefore statutory warranty provision does not apply - whether Tribunal erred in hearing matter de novo – where Appeal Tribunal ordered de novo hearing as it was entitled - whether appellant sufficiently informed of de novo hearing – where Appeal Tribunal’s reasons clearly state de novo hearing and were sent to appellant before hearing who was given opportunity to file material – where appellant failed to file any material and thereby failed to act in own interests - where findings of fact open on evidence - where no grounds to grant leave to appeal as no error by Member causing substantial injustice or question of public importance  

Property Agents and Motor Dealers Act 2000, ss 244, 470, 488, 574
Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 143, 146

Aon Risk Services Australia Ltd v. Australian National University (2009) 239 CLR 175
Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321
Bradlyn Nominees Pty Ltd v. Saikovski [2012] QCATA 39
Chambers v. Jobling (1986) 7 NSWLR 1
Clarke v. Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
Creek v. Raine & Horne Mossman [2011] QCATA 226
Dearman v. Dearman (1908) 7 CLR 549
Ellis & Anor v. Queensland Building Services Authority [2010] QCATA 93
Fox v. Percy (2003) 214 CLR 118
King Developments Pty Ltd v. Mayne [2015] QCATA 29
King Developments Pty Ltd v. Mayne [2015] QCAT 173
Lida Build Pty Ltd v. Miller & Anor [2011] QCATA 219
Pickering v. McArthur [2005] QCA 294
Selvanayagam v. University of the West Indies [1983] 1 All ER 824
Soulemezis v. Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Waterford v. The Commonwealth (1987) 163 CLR 54  	

APPEARANCES:		

APPELLANT:	Mr Alan John Coburn Mayne in person

RESPONDENT:	Mr Greg King and Mr Garry King appeared for King Developments Pty Ltd

REASONS FOR DECISION

Senior Member Stilgoe OAM

[1]	In this appeal, the appeal Tribunal comprised Member Hughes and me. I have had the benefit of reading Member Hughes’ reasons in draft and I agree with his reasons, conclusions and the order he proposes.

Member Hughes
What is this appeal about?
[2]	Alan Mayne sold a repairable write-off vehicle to King Developments Pty Ltd for $9,000.00. King was never able to register the vehicle and the Tribunal ultimately awarded him $11,369.49 from the Claim Fund. The Tribunal also named Mr Mayne as the person liable for King’s loss on the basis that he knew at the time of sale that the vehicle would not be capable of being registered 
[3]	Mr Mayne appeals this decision. 
What are the grounds of appeal?
[4]	Mr Mayne’s appeal involves questions of mixed law and fact. 
[5]	Mr Mayne submitted that the Tribunal made errors of law by applying the repealed Property Agents and Motor Dealers Act 2000 (“PAMDA”), re-hearing the matter de novo, not ensuring he was sufficiently informed that the matter would be re-heard de novo, failing to apply section 244 of PAMDA and, making material findings of fact without regard to relevant evidence and without giving Mr Mayne the opportunity to cross-examine.
[6]	Failing to consider evidence or making findings of fact not open on the evidence raises questions of fact or questions of mixed law and fact and therefore requires leave to appeal. 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 caused by that error.
[7]	The Appeal Tribunal must therefore determine whether the learned Member applied the correct law, whether the matter was properly heard de novo, whether Mr Mayne was sufficiently notified that the hearing would be a de novo hearing and whether the learned Member’s findings about Mr Mayne’s knowledge and the value and condition of the vehicle were open on the evidence.
Did the Tribunal err in applying repealed legislation? 
[8]	Mr Mayne correctly points out that PAMDA was repealed in 2014. Mr Mayne sold the vehicle to King on 24 November 2011, before the Act’s repeal. 
[9]	Section 158 of the Agents Financial Administration Act 2014 (Qld) (“AFA Act”), which replaced PAMDA, provides that, where an event happened before the commencement of the AFA Act, and time has not expired for the bringing of a proceeding, the proceeding may be started under the AFA Act.
[10]	The learned Member should have applied the AFA Act. Her application of PAMDA was in error and leave to appeal should be granted. However, because the provisions of the AFA Act mirror the provisions of PAMDA in what the tribunal should consider in determining a claim under the fund, the learned Member’s error did not affect the validity of her decision. 
Did the Tribunal err in not applying section 244 of the Property and Agents and Motor Dealers Act 2000? 
[11]	Section 244 of the Property Agent and Motor Dealers Act 2000 imposes obligations on the buyer of a vehicle to claim under the statutory warranty that the vehicle is free of defects in section 242. 
[12]	While section 244 of the Act is valid in the context of a buyer seeking to enforce the statutory warranty that the vehicle is free from defects, it does not apply to King’s claim.
[13]	This is because King was awarded its financial loss from the Claim Fund for false representations about the vehicle under sections 470, 488 and 574 of the Act – not for any breach of the statutory warranty. Section 244 does not apply to claims against the Claim Fund for false representations. The learned Member therefore did not err in not applying section 244 to the claim.
[14]	This is not an appellable error.
Did the Tribunal err in rehearing the matter de novo?
[15]	Mr Mayne submits that, as the Tribunal determined the relevant facts at the original hearing on 9 April 2014, the Tribunal had no grounds to hear the matter de novo and should not have re-considered the facts at the hearing on 11 May 2015.
[16]	King successfully appealed the decision of 9 April 2014. In allowing King’s appeal on a question of law, the Appeal Tribunal ordered a hearing de novo, as it was entitled. Mr Mayne did not appeal the Appeal Tribunal’s decision. He is not entitled to revisit that decision now. 
[17]	A hearing de novo means that the Tribunal re-hearing the matter is not confined to the evidence or materials in the original hearing.  
[18]	The learned Member therefore did not err in following the Appeal Tribunal’s decision to hear the matter de novo and determining both questions of fact and law.
[19]	This is not an appellable error.
Was Mr Mayne sufficiently informed that the hearing would be de novo?
[20]	Mr Mayne claims that he was not sufficiently informed that the hearing on 11 May 2015 would revisit the facts of the matter. However, the Appeal Tribunal’s decision delivered on 24 February 2015 clearly states (my emphasis):
The appeal is allowed. The claim is referred to the tribunal, before a different member, for an oral hearing de novo. For that reason, I do not need to determine issues of fact which are the subject of an application for leave to appeal. They will be matters for the tribunal to determine, based on oral evidence and all the necessary paperwork.  
[21]	The Appeal Tribunal’s decision was sent to Mr Mayne on 26 February 2015. The decision allowed Mr Mayne until 21 April 2015 to file and serve material in reply to any additional material filed by King. Despite this, Mr Mayne did not file any material. Mr King was therefore given sufficient notice that the hearing would be de novo and given ample opportunity to file further material. He chose not to and thereby failed to act in his own interests:
The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, ‘… the public as a whole, not merely the parties to the proceedings. Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.
[22]	Mr Mayne cannot now rely upon his own failure to file material and present evidence as a ground of appeal.  
[23]	This is not an appellable error.
Were the Tribunal’s findings about Mr Mayne’s knowledge and the value and condition of the vehicle open on the evidence?
[24]	A finding of fact will usually not be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting the underlying inferences. No error of law arises in making a wrong finding of fact unless no evidence supports that finding.
[25]	However, an appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case, but will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions. 
[26]	Mr Mayne contends that he was denied the opportunity to cross-examine King about the telephone message of 21 November 2011. This message formed the basis for the learned Member’s finding that Mr Mayne knew that the vehicle would not pass inspection at least three days prior to the sale. Mr Mayne conceded that this message formed part of the evidence at the hearing. Both parties were given the right to cross-examine at the hearing. Mr Mayne could therefore have cross-examined on this evidence. Because the learned Member had a printout of the telephone message, the evidence could support the finding about Mr Mayne’s knowledge of the vehicle prior to sale and I can find no compelling evidence to the contrary.  
[27]	Mr Mayne also contends that the learned Member failed to properly consider the reduced value of the vehicle due to King failing to mitigate its loss by washing or covering the car. He says that, by ordering King to sell the car to wreckers, it doubles King’s loss. He further claims that the Tribunal erred in the sale process because of insufficient checks and balances on whether King made proper effort to sell the vehicle, whether King stripped it of parts and whether King sold it as required by the Orders. He says that the $300 sale price is well under market value.
[28]	The relevant passage from the learned Member’s decision reads:
King Developments has provided the Tribunal with quotations from Salvage Tender indicating that it would purchase the Ute for scrap in the amount of $1,500.00, and also from Sandgate Auto Wreckers which offered $1,600.00. The Tribunal accepts that the sum of $1,600.00 is reflective of the value of the vehicle, at least prior to the torrential rain that hit Southern Queensland on 1 May 2015.
During the hearing, Mr King gave evidence that following the rain, the Ute became inundated with water. King Developments submits that this means that the value of the vehicle in $Nil. Whilst King Developments has an obligation to mitigate its loss and ensure that the vehicle is safely stored prior to disposal, the Tribunal does not consider there was much that could be done to preserve the Ute in such circumstances. 
[29]	The learned Member therefore specifically found that King could have done little to mitigate its loss - whether by washing or covering the car or otherwise. That finding was open on the evidence – namely, the severe weather event at the time. That fact was common knowledge at the time and the learned Member need not rationalise the basis for this “common knowledge” beyond her own experience:
The weight which a judge will give to the evidence of a witness will often not be capable of rationalisation beyond the statement: having heard him, I am not satisfied that I should accept what he says. The weight which a judge gives to a particular fact may be affected by, as it has frequently been put, his experience and, in particular, his experience of the significance of that fact in the order of things… His reasons, in the particular case, may partake as much of intuition based on experience as on formal deductive reasoning.
… A fact is found in a particular case if the judge is satisfied that it is so. In many matters – and the weight to be given to a fact in the process of assessing facts is one of these – whether a judge is so satisfied in the sense required by Briginshaw v. Briginshaw (1938) 60 CLR 336, may depend upon matters subjective to him as well as upon matters common to judges.
[30]	The Tribunal ordered King to sell the vehicle to wreckers. This ensured King mitigated its loss by recovering as much value for the vehicle as it could. The difference between the purchase price and the sale price to the wrecker is the amount to be paid from the Claim Fund. The learned Member specifically refers to quotation evidence as the basis for the Order. The finding that this was the best recoverable value was therefore open on the evidence before the learned Member.
[31]	Mr Mayne’s submission about the sale price of the vehicle and his concerns about the sale process are fresh evidence. The Appeal Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceedings was heard and determined. To allow this evidence, Mr Mayne must ordinarily satisfy three tests: 
•	Could Mr Mayne have obtained the evidence with reasonable diligence for use at the hearing?
•	If allowed, would the evidence have an important impact on the result of the case?
•	Is the evidence credible?
[32]	Mr Mayne was given an opportunity by the Appeal Tribunal to file evidence of the resale value of the vehicle by the Appeal Tribunal well before the hearing on 11 May 2015. He therefore could have obtained evidence of the resale value for use at the original hearing. In any event, the evidence is not independent or corroborated, but merely his own assertions. Mr Mayne does not identify any evidence to support his bare assertions. It is not the role of the Appeal Tribunal to ensure compliance with the Tribunal’s Orders.  
[33]	In determining the resale value, the learned Member relied upon two independent quotes. In the face of this evidence from two independent sources, it is unlikely that Mr Mayne’s bare assertions about the resale value and sale process would have any impact on the result of the case, even if allowed.    
[34]	The learned Member therefore did have evidence capable of supporting her findings that King could have done little to mitigate its loss and the resale value of the vehicle.  The learned Member has not made any appellable error in accepting this evidence and concluding from that evidence as she did. 
[35]	This is not an appellable error.
Has Mr Mayne established grounds to grant leave to appeal? 
[36]	As the appeal is on grounds of mixed law and fact, leave is necessary. I have identified that the learned Member erred in applying PAMDA rather than the AFA Act. Therefore, leave to appeal should be granted. 
[37]	The Appeals Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions. The learned Member’s findings were open to her on the evidence. Unfortunately for Mr Mayne, nothing in the material demonstrates that the learned Member should have adopted a different view of the facts. 
[38]	Mr Mayne’s material is essentially material that he could and should have presented to the Tribunal at the original hearing. He did not and thereby failed to engage with the process. The appeal process is not an opportunity for a party to again present their case. It is the means to correct error by the Tribunal that decided the proceeding. In any event, nothing in that material persuades me that the learned Member should have reached a conclusion other than she did. The learned Member had evidence upon which she could properly reach the conclusion that she did.
[39]	Mr Mayne has therefore not established grounds for appeal. The appeal is dismissed.