Fenson v Gillam

[2021] QCATA 29

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Fenson v Gillam [2021] QCATA 29

PARTIES:

STEPHEN FENSON

(applicant/appellant)

v

JODIE GILLAM

(respondent)

APPLICATION NO:

APL303-20

ORIGINATING APPLICATION NO:

MCDT60764/19 (Brisbane)

MATTER TYPE:

Appeals

DELIVERED ON:

11 March 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Fitzpatrick

ORDERS:

1.       Leave to appeal is refused.

2.       The application for leave to appeal or appeal is dismissed.

3.       The application for leave to rely upon fresh evidence is refused.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – ILLEGAL AND VOID CONTRACTS – EFFECT OF ILLEGALITY OR INVALIDITY  - deposit – where motor vehicle advertised for sale and agreement to sell entered – whether contract is illegal and unenforceable – whether deposit forfeited

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – OTHER CASES – where minor civil dispute – whether leave to appeal should be granted – whether failure to consider evidence – whether error of fact

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 61
Sale of Goods Act 1896 (Qld), s 4
Transport Operations (Road Use Management – Vehicle Standards and Safety) Regulation 2010, s 23

Buckland v Massey [1985] 1 Qd R 502

Chambers v Jobling (1986) 7 NSWLR 1

Hall v Freeman [2018] QCATA 159

Pickering v McArthur [2005] QCA 294

Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd (1978) CLR 410

APPEARANCES & REPRESENTATION:

Mr Fenson:

Self-represented

Ms Gillam:

Self-represented

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

1. The applicant, Stephen Fenson, has filed an application for leave to appeal or appeal a decision of the Tribunal made on 17 December 2020 that he pay to the respondent, Jodie Gillam, the sum of $1,000.00 (the decision).

2. An affidavit of service filed by Mr Fenson records that service of the appeal proceeding has been effected on Ms Gillam. Ms Gillam has not participated in the proceeding and has not complied with any of the Appeal Tribunal’s directions.

3. The decision followed a hearing of two matters heard together. The proceedings arose out of a dispute in relation to purchase of a second-hand Peugeot motor vehicle by Ms Gillam from Mr Fenson. Ms Gillam claimed return of a deposit of $1,000.00 and Mr Fenson claimed the balance of the purchase price from Ms Gillam.

Reasons for the decision

1. The Adjudicator delivered oral reasons for the decision. In summary, the Adjudicator found that:

   (a)on 28 July 2019, the parties entered into a contract whereby Ms Gillam would purchase the motor vehicle from Mr Fenson for the sum of $4,500.00 upon the vehicle being issued with a roadworthy certificate (now known as a safety certificate) after completion of work necessary to make the vehicle roadworthy, including being fitted with three new tyres.

   (b)A deposit of $1,000.00 was paid and was intended to be sufficient to enable works to be completed to make…