Gold Tip (News) Pty Ltd v AMP Life Limited
[2011] QCATA 301
•1 November 2011
| CITATION: | Gold Tip (News) Pty Ltd v AMP Life Limited [2011] QCATA 301 |
| PARTIES: | Gold Tip (News) Pty Ltd t/as Mt Ommaney News (Applicant/Appellant) |
| v | |
| AMP Life Limited (Respondent) |
| APPLICATION NUMBER: | APL295-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Fleur Kingham, Deputy President |
| DELIVERED ON: | 1 November 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application for leave to appeal is refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – FINDINGS OF FACT – where appellant argued the learned Member erred in making findings of fact – where alleged factual error was based on findings the learned Member did not make – where the appellant otherwise failed to demonstrate any error Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(b) Attorney General NSW v Peters (1924) 34 CLR 146 applied |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
This is an application for leave to appeal from a decision made by a Member of the Tribunal to strike out the proceedings brought by Gold Tip (News) Pty Ltd. Gold Tip made a number of claims against AMP Life Ltd in relation to a news agency in the Mt Ommaney shopping centre. The relevant claim for the purpose of this application for leave to appeal is a claim for damages for misrepresentation.
Gold Tip alleged that they agreed to a lease of the news agency at a much higher and more significant rent than they would have agreed to but for misrepresentations made by AMP Life Limited. The alleged misrepresentations were that AMP had received a signed and unconditional offer for the news agency.
Gold Tip seeks leave to appeal. This is required as the grounds for appeal allege errors of fact by the learned Member.[1] They are:
a)That she erred in concluding that AMP’s conduct in stating that they held signed and unconditional offers was not a misrepresentation; and
b)That she erred in concluding that Gold Tip was not induced to enter into the lease agreement with AMP due to the misrepresentation.
[1] Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(b).
Leave will only be granted where there is a reasonably arguable case of error in the primary decision.[2] Appellant Courts are traditionally reluctant to interfere with decisions based on factual findings because they are based on the evidence of witnesses. Here, the learned Member proceeded on the papers and does not possess the advantage a Trial Judge normally has over an Appeal Court in having observed the witnesses while they gave their evidence.
[2] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
Nevertheless, the Appeal Tribunal is not satisfied that Gold Tip has made out an arguable case of error by the learned Member.
Firstly, the learned Member did not make a finding that AMP’s conduct did not amount to a misrepresentation. In fact, she said this:
In describing these communications – particularly the one from Nextra – as ‘signed and unconditional offers’, AMP’s agent, not to put too fine a point on it, was guilding the lily somewhat.
It seems the learned Member did not make any finding about whether or not that constituted a misrepresentation because she went on to conclude that Gold Tip was not induced to enter into the lease because of what was said by AMP’s agent. Correctly, she observed, a misrepresentation that does not materially induce another party to act cannot find a viable cause of action, either at common law or under the Act (Retail Shop Leases Act 1994).[3]The learned Member went on to explain why she concluded that Gold Tip was not so induced. In its submissions, Gold Tip has not pointed to any alleged error in the learned Member’s reasoning process.
[3]Attorney General NSW v Peters (1924) 34 CLR 146; State of Queensland v Brooks and McCabe [2006] QCA 431, [85].
AMP has made submissions about the facts which support the learned Member’s conclusions. It is not necessary to canvass those submissions, in the absence of some specific argument that indicates the learned Member may have erred.
It is not suggested that the learned Member erred in the legal test she applied. The only grounds raised are said to be errors of fact. The first alleged factual error is based on a finding that the learned Member did not make. No argument has been raised as to why the learned Member’s factual finding relevant to the second ground is in error.
[10] The application for leave to appeal is refused.
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