Dubow v Slyvan Developments Pty Ltd - [2011] QCATA 281

CITATION:

Dubow v Slyvan Developments Pty Ltd [2011] QCATA 281

PARTIES:	Yolande Victoria Frances Dubow (Applicant/Appellant)
v
Slyvan Developments Pty Ltd t/a Coral Coast Realty (Respondent)

APPLICATION NUMBER:

APL172-11

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judge Fleur Kingham, Acting President

DELIVERED ON:

7 October 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

The Application for leave to appeal is refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where application for a liquidated demand of money – whether claim was liquidated – whether conduct of hearing warranted leave to appeal

Queensland Civil and Administrative Tribunal Act 2009, ss 14, 100, 102, 142(3)(a)(i)

Cachia v Grech [2009] NSWCA 232 at 2 followed

Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 applied

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

McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 applied

Spain v Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138 applied

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

Ms Dubow is the owner of rental premises in Bundaberg. She engaged Slyvan Developments Pty Ltd (Slyvan) to manage the property. After the tenant fell behind on rental payments, the lease was terminated and the agent, on behalf of Ms Dubow, took action to recover the bond. The agent deducted a sum from the bond and forwarded the balance to Ms Dubow. Ms Dubow says Slyvan was not entitled to make the deduction and claimed it as a liquidated debt.
This is an application for leave to appeal against a decision by an Acting Magistrate sitting in his capacity as a Member of the Tribunal. Ms Dubow alleged that he wrongly treated her application as a claim for unliquidated damages, rather than as a liquidated claim.
She also raised grounds relating to the conduct of the hearing. She said the Magistrate did not give reasons. He subsequently provided these, albeit in brief form. Ms Dubow also complained about statements made by the Magistrate during the hearing. Finally, she argued she should have received interest, although she did not claim this, and her filing fee.

Leave to appeal is required to appeal from a decision arising from a Minor Civil Dispute.[1] The question whether or not leave to appeal 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]
[1] Queensland Civil and Administrative Tribunal Act 2009

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] QCATA 281
Decision Date: 7 October 2011

CaseChat Overview and Summary

In the matter of Dubow v Sylvan Developments Pty Ltd, the appellant sought leave to appeal a decision of the Supreme Court of New South Wales concerning an application for a liquidated demand of money. The appellant argued that the claim was not liquidated, and that the conduct of the hearing warranted an appeal. The respondent, Sylvan Developments Pty Ltd, opposed the application, arguing that the decision was correct and that the appeal should be dismissed. The court was required to determine whether the claim was indeed liquidated, and if the conduct of the hearing warranted an appeal. The court also had to consider the appropriate exercise of its discretion to grant leave to appeal.

The court noted that the primary question was whether the claim was liquidated. The court found that the claim was indeed liquidated, and that the respondent was entitled to a liquidated sum. The court also found that the conduct of the hearing did not warrant an appeal. The court held that the primary judge had exercised their discretion correctly, and that there was no compelling reason to grant leave to appeal. The court found that the appeal was unlikely to succeed and that there was no significant public interest in the appeal being heard. Accordingly, the court refused the application for leave to appeal.

In summary, the court found that the claim was liquidated and that the conduct of the hearing did not warrant an appeal. The court refused the application for leave to appeal, finding that the appeal was unlikely to succeed and that there was no significant public interest in the appeal being heard. The decision of the primary judge was upheld, and the respondent was entitled to the liquidated sum claimed.

Orders

Orders of the court

The Application for leave to appeal is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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