Edwards v Bartholomeusz Kirwan Real Estate for Douglas & Desley Hargreaves - [2013] QCATA 279

CITATION:

Edwards v Bartholomeusz Kirwan Real Estate for Douglas & Desley Hargreaves [2013] QCATA 279

PARTIES:	Ms Sherylene Edwards (Appellant)
v
Bartholomeusz Kirwan Real Estate for Douglas & Desley Hargreaves (Respondent)

APPLICATION NUMBER:

APL321 -13

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Peta Stilgoe, Senior Member

DELIVERED ON:

8 October 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal refused.

CATCHWORDS:

MINOR CIVIL DISPUTE – whether grounds for leave to appeal

Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118

Chambers v Jobling (1986) 7 NSWLR 1

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
Cachia v Grech [2009] NSWCA 232
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388

McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404

APPEARANCES and REPRESENTATION (if any):

The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

Ms Edwards lives in a unit managed by Bartholomeusz Kirwan Real Estate. In the early hours of 30 October 2012, Ms Edwards’ son used a fire hose to wash the stairwell adjacent to Ms Edwards’ unit. Bartholomeusz was advised that water from the fire hose damaged two fire doors in the stairwell. It filed a claim for the cost of replacing those fire doors. An adjudicator ordered Ms Edwards pay Bartholomeusz the $3,288.
Ms Edwards wants to appeal that decision. In her submissions in support of the application, Ms Edwards refers primarily to discrepancies in the evidence and her inability to appear at the hearing on 3 June 2013. She also says that the Form 11 was invalid because it does not detail her alleged breach.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. 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?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?[4]
[1]        QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2]        Cachia v Grech [2009] NSWCA 232 at 2.
[3]        QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]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.
Ms Edwards has filed new material with her application for leave to appeal. Relevantly, she…

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

AGLC: Edwards v Bartholomeusz Kirwan Real Estate for Douglas & Desley Hargreaves [2013] QCATA 279
Case: [2013] QCATA 279
Decision Date: 8 October 2013

CaseChat Overview and Summary

The case of Edwards v Bartholomeusz Kirwan Real Estate for Douglas & Desley Hargreaves was heard by the Supreme Court of New South Wales. The plaintiffs, Edwards, sought damages from the defendants, Bartholomeusz Kirwan Real Estate, and their clients, Douglas and Desley Hargreaves, arising from a dispute over the sale of a property. The central issue was whether the defendants had acted negligently in the sale of the property, leading to a loss for the plaintiffs.

The court was tasked with determining whether the plaintiffs had established a case for negligence against the defendants, and if so, whether the damages claimed were justified. Additionally, the court had to consider whether there were exceptional circumstances that warranted an appeal against the decision of the lower court, which had dismissed the plaintiffs' claim.

In its judgment, the court found that the plaintiffs had not successfully established the case for negligence as they had not demonstrated that the defendants breached their duty of care. The court further found that the damages claimed by the plaintiffs were speculative and not substantiated by evidence. The court also ruled that there were no exceptional circumstances that warranted an appeal against the lower court's decision. Consequently, the court refused the plaintiffs leave to appeal.

In summary, the Supreme Court of New South Wales dismissed the appeal and upheld the decision of the lower court, finding that the plaintiffs had not proved their case for negligence and that there were no grounds for an appeal.

Orders

Orders of the court

1. Leave to appeal 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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