Dariush-Far v Gettens

[2012] QCATA 153

CITATION: Dariush-Far v Gettens [2012] QCATA 153

PARTIES:	Alexander Hamid Dariush-Far (Appellant)
v
Justin Gettens (Respondent)

FILE NUMBER APL143-12

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Richard Oliver, Senior Member
Susan Gardiner, Member

DELIVERED ON: 23 August 2012

DELIVERED AT: Brisbane

ORDERS MADE:     1.   The application for leave to appeal or appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – PROPERTY AGENTS – where an order is made for payment from the Claim Fund under the Property Agents and MotorDealers Act 2000 – where an appeal is lodged but which discloses no grounds – where the appeal is dismissed

Property Agents and MotorDealers Act 2000
Queensland Civil and Administrative Tribunal Act2009, s 142

REASONS FOR DECISION

Senior Member Richard Oliver

1. I have had the benefit of reading the reasons of Ms Gardiner in draft.  I agree with her reasons and her conclusions, and the order she proposes.

Member Susan Gardiner

1. On 11 April 2012, the Tribunal made an order that the Chief Executive pay to Mr Gettens the sum of $35,541.07 from the Claim Fund under the Property Agents and MotorDealers Act 2000.  This payment was in respect of a claim against Mr Dariush-Far and a company associated with Mr Dariush-Far for the refund of a deposit paid under real estate contract that did not proceed.   

1. On 3 May 2012, Mr Dariush-Far filed an application for leave to appeal or to appeal the decision along with a stay application.  The stay application was refused on 21 June 2012.

1. Directions were made on 22 May 2012 in the appeal itself for Mr Dariush-Far to file submissions and a list of documents in the earlier proceedings Mr Dariush-Far considered relevant to his appeal, by 4.00pm on 20 June 2012.  Mr Dariush-Far did not comply with the direction and Mr Dariush-Far has taken not further steps to prosecute his appeal.

1. Under the QCAT Act, an appeal can only be brought directly if it is on a question of law. Otherwise, leave to appeal must be sought[1].

   [1] Section 142 Queensland Civil and Administrative Tribunal Act 2009.

1. The question whether or not leave should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?[2]  Is there a reasonable prospect that the applicant will obtain substantive relief?[3]  Is leave necessary to correct a substantial injustice to the applicant caused by some error?[4]  Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[5]

   [2]        QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

   [3]        Cachia v Grech [2009] NSWCA 232 at [13].

   [4]        QUYD Pty Ltd v Marvass Pty Ltd (supra).

   [5]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.

1. Mr Dariush-Far’s grounds of appeal are:

1. This matter is outside QCAT’s jurisdiction;

1. The matter cannot be disputed in this Tribunal if deposit money was taken by the deposit holder;

1. The deposit is not released due to the contract being valid and the buyer cannot terminate an unconditional contract;

1. QCAT cannot make an order where there is dispute about the validity of the contact;

1. Several offers were made and rejected by Mr Gettens;

1. Mr Gettens was asked to place the deposit in an interest bearing account but refused.

1. A perusal of the reasons of the learned members shows that all of these issues were addressed in the initial hearing, and clearly the Tribunal has jurisdiction to consider the referral from the Chief Executive.  Mr Dariush-Far has not demonstrated any grounds for leave or to appeal in his application.  He has not filed any submissions which may have elaborated on the grounds of appeal.  He has chosen no to take any further part in his own application, therefore the conclusion that the application is vexatious is clearly open, and perhaps filed for the purposes of delaying the paying out of the money to Mr Gettens.

1. In any event, given the applicant’s conduct and as the reasons of the learned members below discloses no error, there is no reasonable prospect that Mr Dariush-Far will obtain substantive relief.  There is also no question of importance about which a further argument and a decision of the Appeal Tribunal would be of public advantage.  Leave to appeal is refused and otherwise the application is dismissed.