Futur3 Studios Pty Ltd v A Sweet Memory Photography - [2011] QCATA 312

CITATION:

Futur3 Studios Pty Ltd v A Sweet Memory Photography [2011] QCATA 312

PARTIES:	Futur3 Studios Pty Ltd
v
A Sweet Memory Photography

APPLICATION NUMBER: APL040-11

MATTER TYPE:

Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF:

Richard Oliver, Senior Member
Peta Stilgoe, Member

DELIVERED ON: 6 June 2011

DELIVERED AT: Brisbane

ORDERS MADE:

1. The time for filing the application for leave to appeal is extended to 10 February 2011.

2. The application for leave to appeal is granted.

3. The appeal is upheld and the adjudicator’s order is set aside.

4. The proceeding is returned to the tribunal for rehearing.

CATCHWORDS:

PROCEDURE – where application for leave to appeal filed late – whether leave to extend time

APPEAL – where amended claim delivered at the door of the hearing – whether evidence capable of supporting orders of the tribunal

Queensland Civil and Administrative Tribunal Act 2009, ss 61, 122(2), 143

Manson v Collins [2010] QCATA 63
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

Dearman v Dearman (1908) 7 CLR 549

Fox v Percy (2003) 197 ALR 201.

Chambers v Jobling (1986) 7 NSWLR 1

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

Mr Oliver

In this matter the Appeal Tribunal consisted of Ms Stilgoe, QCAT Member and me. I have had the benefit of reading her reasons in draft. I agree with her reasons, and her conclusions, and the order she proposes.

Ms Stilgoe

A Sweet Memory Photography (“ASMP”) engaged Futur3 to create a website for its photography business. The website went live in April 2010 but ASMP was not happy. It brought a claim in the tribunal’s minor civil dispute jurisdiction initially claiming a refund of money paid to Futur3 for the construction of the website, the filing fee and an order that Futur3 not interfere with the operation of the website.

Futur3 unilaterally suspended the operation of ASMP’s website shortly after the application was filed. At the hearing of the dispute on 10 December 2010, ASMP amended its claim to add a claim for damages. ASMP’s total claim was $14,211. The learned Adjudicator ordered that Futur3 pay ASMP $11,914 which is comprised of a refund of the cost of the website, the filing fee of $92, damages for loss of income of $9,200 and $500 for the cost of rectifying the website.

Futur3 has appealed the learned Adjudicator’s decision on these grounds:

a) There was no way to verify the loss of business ASMP allegedly suffered from the suspension of the website.

b) It is not reasonable to receive both a website and a refund for the cost of constructing…

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.

Keep reading for free

Create a free CaseChat account to read Futur3 Studios Pty Ltd v A Sweet Memory Photography and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] QCATA 312
Decision Date: 6 June 2011

CaseChat Overview and Summary

In the case of Futur3 Studios Pty Ltd v A Sweet Memory Photography, the parties were engaged in a dispute regarding the application for leave to appeal and the timing of an amended claim. The matter was before the court, which was required to determine whether the application for leave to appeal was filed late and, if so, whether leave to extend the time should be granted. Additionally, the court needed to decide whether the evidence presented was capable of supporting the orders made by the tribunal.

The court first considered the timeliness of the application for leave to appeal, which was filed outside the statutory period. The applicant argued that the late filing was due to circumstances beyond their control, warranting an extension of time. The court acknowledged the late filing but granted the extension, finding that the delay did not prejudice the respondent and that there were exceptional circumstances justifying the extension. Regarding the amended claim, the court found that the evidence provided was sufficient to support the tribunal's orders, despite the late delivery. The court concluded that the evidence was capable of supporting the tribunal’s decision and was thus admissible.

The court granted the application for leave to appeal, extended the time for filing, and upheld the appeal. The tribunal’s order was set aside, and the matter was returned to the tribunal for rehearing. This decision highlights the importance of procedural timeliness and the tribunal's ability to consider late-filed evidence under certain circumstances.

Orders

Orders of the court

1. The time for filing the application for leave to appeal is extended to 10 February 2011.

2. The application for leave to appeal is granted.

3. The appeal is upheld and the adjudicator’s order is set aside.

4. The proceeding is returned to the tribunal for rehearing.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.