Day v Ski Seven Pty Ltd

[2012] QCATA 66

CITATION: Day v Ski Seven Pty Ltd [2012] QCATA 066

PARTIES:	Andrew Charles Day (Applicant/Appellant)
v
Ski Seven Pty Ltd (Respondent)

APPLICATION NUMBER: APL009-12

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON: 30 April 2012

DELIVERED AT: Brisbane

ORDERS MADE: 1.    Leave to appeal is refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – MINOR DEBT CLAIM – MONIES DUE AND OWING – where the Applicant had entered into an arrangement with the Respondent for part ownership of a horse – where the Applicant had alleged that the arrangement constituted a managed investment scheme – where the Applicant had sought the return of monies paid to the Respondent – where the learned Magistrate concluded that the arrangement for part ownership was not a syndicate but an agreement in the nature of part ownership – whether the decision of the learned Magistrate was affected by an appellable error resulting in a substantial injustice

Queensland Civil and Administrative Tribunal Act 2009, ss 32, 142

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 (QCAT Act).

REASONS FOR DECISION

1. Mr Day brought proceedings in QCAT’s Minor Civil Disputes jurisdiction seeking the return of monies he paid to the respondent by way of an investment in the part ownership of a racehorse.  The matter was heard by a Magistrate sitting as a QCAT Member in the Tribunal’s Minor Civil Disputes jurisdiction over two days on 7 and 16 December 2011.

2. Mr Day’s allegation was that he had invested in a ‘syndicate’ which, as evidence presented on his behalf showed, may have been a form of managed investment scheme regulated by the Australian Securities & Investment Commission or Racing Queensland.

3. After hearing evidence from Mr Day, his associate Mr Harrop and two persons representing the respondent, the learned Magistrate concluded that Mr Day had in fact purchased a 20% share in a horse, of which the other 80% was held by a syndicate called Ski Seven syndicate.  She concluded, also, that the arrangement for part ownership of the horse between Ski Seven syndicate and Mr Day was not itself a syndicate but, rather, simply an agreement in the nature of part ownership with the expected elements – e.g., sharing expenses relating to the horse on an 80/20 basis.  She specifically found that the arrangement between the respondent and Mr Day was ‘…not a managed investment scheme’.

4. Because the original proceedings were in QCAT’s Minor Civil Disputes jurisdiction, Mr Day has no automatic right to appeal and must first obtain leave: QCAT Act, s 142(3)(a)(i).

5. As an applicant for leave he must show that the decision of the learned Magistrate was affected, arguably at least, by an appellable error resulting in a substantial injustice.

6. It is not an error of that kind to prefer one version of the facts to another, or to attribute more weight to the evidence of one witness than the testimony of another.

7. Decided cases confirm that findings of fact by the original decision maker – here, the learned Magistrate – will not usually be disturbed on appeal if the findings have rational support in the evidence.  Leave is not to be given where a party simply desires to re-argue the case, either on existing or additional evidence.  One clear purpose of the requirement for leave is to prevent any attempt to conduct a retrial, on the merits.

8. The learned Magistrate heard the evidence for both parties.  At the conclusion of the hearing she explained shortly, but clearly and well, how and why she had concluded that Mr Day had purchased, and knew or ought to have known that he had purchased, a 20% share in a horse of which the other 80% was owned by the syndicate.

9. As she observed, the horse registration documents showed Mr Day as one owner, and the syndicate as another.  She had also seen invoices in which Ski Seven had invoiced Mr Day for 20% of the share of costs for training and sustaining the horse.  Her conclusion that, in light of this evidence, Mr Day knew or ought to have known that he had not purchased a share in a syndicate but, rather, a discrete 20% share of the horse is in line, and consistent with, the evidence before her.

10. It follows that the decision of the learned Magistrate is not open to criticism on the grounds that her findings of fact – which were critical to her decision – were against the evidence, or the weight of evidence.  She relied upon evidence which was relevant to the issue in the case, and of sufficient weight to justify and support her findings.

11. In those circumstances no error is apparent.  Nor can it be said that any injustice has been inflicted upon the applicant, Mr Day.  It is clear from the transcript of the hearing that the learned Magistrate allowed both parties ample opportunity to present their cases and evidence, and to make submissions, and she explained her decision and her reasons for it in clear terms.  No basis for a grant of leave to appeal has been established, and Mr Day’s application must be dismissed.