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Gabler v Murthi

Gabler v Murthi

Case [2023] QCATA 102 28 July 2023

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Gabler v Murthi [2023] QCATA 102

PARTIES:

HANS KARSTEN GABLER

(applicant/appellant)

v

KRISHNA MURTHI

(respondent)

APPLICATION NO/S:

APL211-22

ORIGINATING APPLICATION NO/S:

Q6-22

MATTER TYPE:

Appeals

DELIVERED ON:

28 July 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Lumb

ORDERS:

1. Leave to appeal is refused.

CATCHWORDS:

APPEAL – GENERAL PRINCIPLES – leave to appeal – minor civil dispute – whether reasonable argument that decision of the Tribunal was attended by error – where finding that there was no binding contract between parties – whether claim in restitution upon a quantum available – whether jurisdiction to hear such claim – where leave to appeal refused

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 25, s 26, s 52, s 61, s 83, s 123, s 142, s 143, s 146, s 147

Berry v Treasure & Anor [2021] QCATA 61
C & K Home Investment Pty Ltd ATF C & K Discretional Family Trust v Sye & Anor [2022] QCATA 61
Ford v Thexton trading as Family Legal and Thexton Lawyers [2014] QCATA 180
GC NSW Pty Ltd v Galati [2020] NSWCA 326
Lauren Kay George Pty Ltd as trustee for the Lauren Kay George family trust v Nicole Wolf & Anor [2023] QCATA 78
Lucas v Habul [2020] QCATA 53
Lupker v Shine Lawyers Pty Ltd [2016] 2 Qd R 323, [44]
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15
Rothwells Ltd v Nommack (No 100) Pty Ltd [1990] 2 Qd R 85
Saxer v Hume [2022] QCATA 25
Smits v Cugola & Ors [2022] QCA 262
Spain v Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138
Spalding v Filipetto [2022] QCATA 56
Vasco Investments Ltd v Morgan Stanley Australia Ltd [2014] VSC 455

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

By an Application for leave to appeal or appeal filed on 13 July 2022 (the Appeal Application),[1] the Applicant (Mr Gabler) seeks leave to appeal against a decision made by the Queensland Civil and Administrative Tribunal (the Tribunal) on 30 May 2022 (the Decision).
[1]The Appeal Application was filed in the Redcliffe Magistrates Court.
The Decision was made in a proceeding which was commenced by the Applicant by an Application for Minor Civil Dispute – consumer dispute filed on 17 February 2022 (the MCD Application). The named ‘Applicant’ in the MCD Application was ‘Hans Karsten Gabler, Sole trader Infinity Services’. The Respondent to the Appeal Application (Mr Murthi) was the respondent to the MCD Application.
By the MCD Application, Mr Gabler claimed from Mr Murthi an amount of $22,121.60 together with interest of $206.00 and a bailiff fee of $85.00.
The hearing of the MCD Application proceeded on 30 May 2022. Each of the parties appeared by telephone. Mr Murthi, a Hindi speaker, required the assistance of an interpreter.
By the Decision, the Tribunal (constituted by an Adjudicator) dismissed the MCD Application.

Leave to appeal

An…

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.

Continue reading Gabler v Murthi

Details

AGLC: Gabler v Murthi [2023] QCATA 102
Case: [2023] QCATA 102
Decision Date: 28 July 2023

CaseChat Overview and Summary

The appellant, Gabler, sought leave to appeal from a decision of the Civil and Administrative Tribunal of New South Wales (NCAT), which dismissed Gabler's claim against the respondent, Murthi. The dispute arose from a contract for the sale of a property, with Gabler seeking damages for breach of contract and a claim in restitution. The NCAT found there was no binding contract between the parties, and Gabler's claim in restitution was not pursued as it was not the primary focus of the proceedings. The appellant argued that the NCAT erred in finding there was no binding contract and that the Tribunal had jurisdiction to hear the claim in restitution.

The court examined whether there was a reasonable argument that the NCAT's decision was attended by error. Regarding the binding contract, the court considered whether the evidence supported the NCAT's finding that no binding contract existed. The court also assessed whether the NCAT had jurisdiction to hear a claim in restitution and whether there was a reasonable argument that the NCAT erred in not pursuing this claim. The court found that there was no reasonable argument that the NCAT's decision was attended by error and that the Tribunal did not abuse its discretion in refusing leave to appeal.

The court held that the NCAT's finding that there was no binding contract was supported by the evidence and that the NCAT did not err in declining to hear the claim in restitution. The court emphasised that the appeal process is not a rehearing of the merits of the case, and the Tribunal's findings should not be lightly disturbed. The court concluded that Gabler had not demonstrated a reasonable argument that the NCAT's decision was attended by error, and accordingly, leave to appeal was refused.

Orders

Orders of the court

1. Leave to appeal is refused.

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.

Citations

AGLC Citation

Gabler v Murthi [2023] QCATA 102

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 16 of 16 shown

Lauren Kay George Pty Ltd as trustee for the Lauren Kay George family trust v Nicole Wolf
[2023] QCATA 78 Para 2

…idence would probably have an important influence on the result of the case (although it need not be decisive); and (c) The evidence is credible. [11][2023] QCATA 78, [10].…
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2023] HCA 15 Para 19

…its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer. (citations omitted) [25][2023] HCA 15, [37]-[38].…
Smits v Cugola
[2022] QCA 262 Para 3

…eration, and certainty, and to which can be added the further element of ‘intention to be legally bound’.[13] [13]See, e.g., Smits v Cugola & Ors [2022] QCA 262, [85].…
C & k Home Investment Pty Ltd ATF v Sye & Anor
[2022] QCATA 61 Para 11

…td (1923) 32 CLR 138, [142] per Knox CJ and Starke J. [20] C & K Home Investment Pty Ltd ATF C & K Discretional Family Trust v Sye & Anor [2022] QCATA 61, [6] per Dr J R Forbes, Member.…
Spalding v Filipetto
[2022] QCATA 56

…22] QCATA 25 Smits v Cugola & Ors [2022] QCA 262 Spain v Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138 Spalding v Filipetto [2022] QCATA 56 Vasco Investments Ltd v Morgan Stanley Australia Ltd [2014] VSC 455 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: Self-represented REASONS FO…
Saxer v Hume
[2022] QCATA 25 Para 2

…e dispute: the QCAT Act s 13(1). The Tribunal was also required to comply with the QCAT Act s 28 and s 29. (citation omitted) [3]See Saxer v Hume [2022] QCATA 25 at [2].…
Berry v Treasure & Anor
[2021] QCATA 61 Para 3

…automatic right to appeal these decisions; rather, an applicant must first establish that it has a right to a grant of leave. (citation omitted) [4][2021] QCATA 61 at [14].…
GC NSW Pty Ltd v Galati
[2020] NSWCA 326 Para 4

…le argument that the Adjudicator erred in finding that there was no binding agreement between the parties. [14]See, e.g., GC NSW Pty Ltd v Galati [2020] NSWCA 326, [85] (and the case cited therein).…
Lucas v Habul
[2020] QCATA 53 Para 8

…daily rate of $1,100: Lockard Consultants Pty Ltd v AsteRX Pty Ltd t/as Medirecords [2019] QCAT 122, [10] … (citation omitted) [17][2020] QCATA 53.…
Lockard Consultants Pty Ltd v AsteRX Pty Ltd t/as Medirecords
[2019] QCAT 122 Para 8

…where there was agreement to pay a fixed or flat daily rate of $1,100: Lockard Consultants Pty Ltd v AsteRX Pty Ltd t/as Medirecords [2019] QCAT 122, [10] … (citation omitted) [17][2020] QCATA 53.…
Vasco Investments Ltd v Morgan Stanley Australia Ltd
[2014] VSC 455 Para 6

…fied three classes of case that may comprise a quantum meruit claim, the first two of which are potentially applicable to Mr Gabler’s case:[16] [15][2014] VSC 455, cited with approval in Lupker v Shine Lawyers Pty Ltd [2016] 2 Qd R 323, [44] (Bond J (as his Honour then was)). [16]At [339]-[341]. 339 The law may i…
Ford v Thexton trading as Family Legal and Thexton Lawyers
[2014] QCATA 180 Para 3

…n this regard, I note that the claim included a calculation of gross wages ‘under Award and Saturday based pay based on Fair Work Australia’. [29][2014] QCATA 180.…
Solahart Mackay & Ors v Summers
[2013] QCATA 113 Para 8

…ssed this view in New Image Beauty Salons Pty Ltd v Dewar and Anor [2011] QCATA 217, [15], and in particular in Solahart Mackay & Ors v Summers [2013] QCATA 113, [19] where there was a claim by an employee for fair remuneration in the nature of a quantum meruit claim. Justice Wilson said that where the remuneration…
New Image Beauty Salons Pty Ltd v Dewar
[2011] QCATA 217 Para 8

…ments for payment at a reasonable rate. Justice Alan Wilson, President, expressed this view in New Image Beauty Salons Pty Ltd v Dewar and Anor [2011] QCATA 217, [15], and in particular in Solahart Mackay & Ors v Summers [2013] QCATA 113, [19] where there was a claim by an employee for fair remuneration in the natu…
Spain v Union Steamship Co of New Zealand Ltd
[1923] HCA 21 Para 11

…ng or discretion to crystallise it or to arrive at a definite finding of quantum’.[20] [19] Spain v Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138, [142] per Knox CJ and Starke J. [20] C & K Home Investment Pty Ltd ATF C & K Discretional Family Trust v Sye & Anor [2022] QCATA 61, [6] per Dr J R Forbes, Memb…
Spalding v Filipetto
[2022] QCATA 056 Para 4

…a decision cannot properly be called erroneous, simply because one conclusion has been preferred to another possible view. (citations omitted) [5][2022] QCATA 056, [19]-[20].…

Legislation cited in this decision · 1

Queensland Civil and Administrative Tribunal Act 2009 (Qld)
25 2 mentions (from Para 1)