Gollan v Vaccaneo

[2013] QCATA 228

CITATION: Gollan v Vaccaneo [2013] QCATA 228

PARTIES:	William Campbell Gollan (Appellant)
V
Mary Vaccaneo (Respondent)

APPLICATION NUMBER: APL212 -13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe OAM, Senior Member

DELIVERED ON: 5 August 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1. Leave to appeal refused

CATCHWORDS:

MINOR CIVIL DISPUTE – where order to repair car – where parties did not comply with order – where application to reopen – where new order made - where application for leave to appeal on merits – 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

1. Ms Vaccaneo bought a 1997 Kia Sportage from Mr Gollan for $4,900. Only a couple of days after she bought the car, and having driven a short distance, Ms Vaccaneo discovered that the engine had “cooked” and needed replacement. On 11 December 2012, the tribunal ordered that Ms Vaccaneo deliver the car back to Mr Gollan and that Mr Gollan have the engine fully repaired by 28 February 2013.

2. Ms Vaccaneo applied to reopen the proceeding because Mr Gollan did not comply with the tribunal’s order. On 23 April 2013, the tribunal ordered that Ms Vaccaneo deliver her car to a third party on 26 April 2013 and the third party do the necessary work by 31 May 2013.

3. Mr Gollan wants to appeal the learned Adjudicator’s second decision. He says that the learned Adjudicator erred in finding that Mr Gollan was responsible for the condition of the motor. He says that the order of 11 December should not have been extended because Ms Vaccaneo failed to deliver the car as required. He complains that the learned Adjudicator was insulting and disrespectful, and took no account of Mr Gollan’s sworn statements. He says that the learned Adjudicator was biased. He says that the second orders are not an extension of the first orders but new directives.

4. 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…