Dutta v Guy Kits t/a Design Build Homes

[2014] QCATA 280

CITATION: Dutta v Guy Kits t/a Design Build Homes [2014] QCATA 280

PARTIES:	Prit Nath Dutta (Applicant/Appellant)
v
Guy Kits t/a Design Build Homes (Respondent)

APPLICATION NUMBER: APL002-14

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Stilgoe OAM
Member Deane

DELIVERED ON: 30 September 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The Application for leave to appeal or appeal is dismissed.

CATCHWORDS:

APPEALS – leave to appeal or appeal – no demonstrated error

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142

Lida Build Pty Ltd v Miller and Anor [2011] QCATA 219
Gemview Jewellery v Florian Stafleu [2011] QCATA 276

Dearman v Dearman (1908) 7 CLR 549

Fox v Percy (2003) 214 CLR 118

Chambers v Jobling (1986) 7 NSWLR 1

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 (Qld) (QCAT Act).

REASONS FOR DECISION

1. Mr Dutta applied for a refund of moneys paid to a business operated under the name Design Build Homes.  By decision dated 5 December 2013 the Tribunal dismissed his application.  Mr Dutta applies for leave to appeal or appeal against the Tribunal’s decision. 

2. Where grounds of appeal contend there has been an error of fact or mixed law and fact leave to appeal is necessary.[1] 

   [1]QCAT Act s 142(3)(b).

3. There are well established principles as to when leave should be granted.[2] Is there a reasonably arguable case of error in the decision?  Is there a reasonable prospect that the applicant will obtain substantive relief? Is leave necessary to correct a substantial injustice to the applicant caused by some error? Is there a question of general importance upon which further argument and a decision the Appeal Tribunal would be to the public advantage?

   [2]Lida Build Pty Ltd v Miller and Anor [2011] QCATA 219.

4. Mr Dutta’s application and submissions are not particularly helpful in addressing these principles. It appears his position is that the Tribunal was in error in making the findings it did, the facts should be reconsidered and a different decision made.  On that basis he effectively contends that there were errors of fact or mixed law and fact and so leave is required.

5. In his submissions he seeks essentially to reargue the case he made at the hearing and challenges the learned Member’s findings.  As has been previously observed by the Appeal Tribunal[3]

   The appeal process is not for rearguing the case; it is for correcting errors made in the decision of the tribunal.

   [3]Gemview Jewellery v Florian Stafleu [2011] QCATA 276 at [15].

6. Mr Dutta points to the learned Member’s statement that he received a set of architectural plans[4].  Mr Dutta says this is an error. 

   [4]Reasons at [3].

7. This statement is contradicted later in the reasons where the learned Member states[5]

   although it also be true that these plans were not quite finalised at the time when Mr Dutta walked away from the agreement

   [5]Reasons at [18].

8. From the later statement it is clear that the learned Member understood and accepted that a final approved set of plans had not been delivered to Mr Dutta by Design Build Homes.  We are not satisfied that any error flowed from the learned Member’s statement at [3] of his reasons. 

9. Mr Dutta has not identified an error in the Tribunal’s reasoning as distinct from disagreeing with the findings.

10. The learned Member essentially found that:

    a)    The written agreement though not signed had been provided to Mr Dutta at the first meeting[6] and bound the parties as if it had been signed[7];

    b)    Design Build Homes acted within the terms of the agreement with Mr Dutta[8];

    c)    Design Build Homes was ready willing and able to perform its obligations within the terms of the agreement[9];

    d)    Mr Dutta’s actions in terminating the agreement prevented Design Build Homes from completing its obligations under the agreement[10];

    e)    In these circumstances no refund was due even though a final approved design had not been obtained by Mr Dutta[11].

    [6]Reasons at [8].

    [7]Reasons at [16].

    [8]Ibid.

    [9]Reasons at [18].

    [10]Ibid.

    [11]Reasons at [18] and [19].

11. Mr Dutta challenges these findings and seeks to reargue that the initial agreement was verbal and that the written agreement provided after the first meeting imposed additional terms.

12. An appeal tribunal will not usually disturb findings of fact on appeal if it considers the conclusions of the decision maker below were able to be made on the evidence before them,[12] however may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[13] 

    [12]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125 – 126.

    [13]Chambers v Jobling (1986) 7 NSWLR 1 at 10.

13. The question for this Appeal Tribunal is whether or not the relevant findings by the learned Member were open on the evidence.  We find that they were.

14. Nothing in the submissions or in the transcript or the reasons of the learned Member suggest any error of fact or law or that any finding was not reasonably open on the evidence. 

15. We are not satisfied that there is a demonstrated error and therefore there is no basis for leave to appeal.