Avoca Smash Repairs v Coachman and Company

[2011] QCATA 17

CITATION: Avoca Smash Repairs v Coachman and Company [2011] QCATA 17

APPELLANT:	Coachman and Company (Applicant/Appellant)
v
RESPONDENT:	Avoca Smash Repairs (Respondent)

APPLICATION NUMBER:   APL257-10

MATTER TYPE: Appeals

HEARING DATE:     On the papers

HEARD AT:  Brisbane

DECISION OF: Judge Fleur Kingham, Acting President

DELIVERED ON: 31 January 2011

DELIVERED AT:      Brisbane

ORDERS MADE: Leave to appeal is refused.

CATCHWORDS :

APPEAL – MINOR CIVIL – whether leave should be granted – where no error of fact or law alleged – where judgement based on applicant’s admission – where potential remedy of re-opening proceedings

Queensland Civil and Administrative Tribunal Act 2009 ss137, 142(3)(a)(i)

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. Avoca Smash Repairs was partially successful in its claim for the value of work performed on motor vehicles owned by Coachman and Company.  It claimed $8,662.60 and obtained a judgment for $3,201.00, based on the admission made by the representative for Coachman and Company (David Cahill).  Coachman and Company now say Mr Cahill made a mistake in admitting that it owing that sum.  Mr Cahill has filed submissions in which he states that the company’s accountant has now calculated only $384.00 is owing.  Coachman and Company has not provided a statement from the accountant or sought leave to adduce further evidence about the matter.

1. There is no right to appeal a Minor Civil Dispute decision.  Leave must be granted[1].  The matter raised by the applicant does not reveal any basis upon which to grant leave.  It does not allege there was any error of law or fact in the decision made by the learned Magistrate.  Nor is there any issue of which appellate consideration would be to the benefit of the public.

   [1]        Queensland Civil and Administrative Tribunal Act 2009 s 142(3)(a)(i).

1. In effect, Coachman and Company is seeking leave to withdraw its admission and re-litigate the claim.  An appeal is not the proper forum for doing so.

1. It may well be that the applicant could apply to reopen the original proceedings.  An application to reopen a proceeding may be granted if a party would suffer a sustainable injustice if it were not reopened, because significant new evidence has arisen and the evidence was not reasonably available when the proceeding was first heard and decided[2].  It is not appropriate to comment on the prospects of that application succeeding, not the least because it is not clear on what basis Mr Cahill made his admission, or when he consulted the accountant or why he could not have done so in time for the initial hearing.

   [2]        Queensland Civil and Administrative Tribunal Act 2009 s 137.

1. Avoca Smash Repairs may well support an application to reopen proceedings.  In its submissions, it states it has evidence to substantiate the full amount claimed.  It may welcome an opportunity to have that material considered by QCAT so that its entire claim could be reconsidered.

1. This is not an appropriate case in which to grant leave to appeal.  The application for leave to appeal is dismissed.