Goodhew v Rachinger - [2013] QDC 16

DISTRICT COURT OF QUEENSLAND

CITATION:

Goodhew v Rachinger and Anor [2013] QDC 16

PARTIES:

ROSS VIVIAN GOODHEW
(appellant)

and

JEANETTE ANN RACHINGER
(first respondent)

and

VIVAD PTY LTD ACN 705646 AS TRUSTEE UNDER INSTRUMENT 706385483
(second respondent)

FILE NO/S:

D138/12

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Maroochydore District Court

DELIVERED ON:

8^th February 2013

DELIVERED AT:

Maroochydore

HEARING DATE:

25^th January 2013

JUDGE:

Robertson DCJ

ORDER:

Appeal dismissed with costs

CATCHWORDS:

APPEAL: where appellant sought to overcome findings of fact below essentially based on credibility and reliability; where appellant seeks to introduce new evidence; whether evidence was available at trial and would in any event make a material difference to the result; where appellant purchased a tutoring business from the second respondent and entered into a lease of the business premises with it and the first respondent; where the appellant abandoned the lease and was sued by the respondents for loss as a result; where appellant counter-claimed alleging a misleading and deceptive representation to him by the second respondent in negotiations; where Magistrate dismissed counter-claim on the basis of a finding of fact that the alleged representation was not made; where damages with interest and indemnity costs were awarded in favour of respondents; whether appellant has demonstrated any error below.

Legislation:

Magistrates Court Act 1921 (Qld)

Trade Practices Act 1974 (Qld)

Uniform Civil Procedure Rules 1999 (Qld)

Cases:

Pickering v McArthur [2010] QCA 341.

COUNSEL:

The appellant represented himself

Ms A Smith of Bosscher Lawyers for the respondents

SOLICITORS:

Appellant self represented

Bosscher Lawyers for the respondents

Introduction

On 24 March 2008 Ross Goodhew (Mr Goodhew) entered into a contract to purchase a tutoring centre at 1/25 Thomas Street, Noosaville (the premises) known as Aldon Tutoring Centre – Noosa District (the business) from Vivad Pty Ltd as trustee for the Vivad Trust (the company) for $96,500. As a condition of that contract Mr Goodhew required a new lease of the premises, and a lease was granted to him by the company and Jeanette Ann Rachinger (Ms Rachinger) for three years with options, the initial term to expire on 15 April 2011. There is some confusion in both the business contract and the lease as to proper description of the company and its status but nothing turns on this and Mr Goodhew has never raised it as an issue. Ms Rachinger was a director of the company and clearly acted on its behalf at all relevant times.

It is common ground that Mr Goodhew left the premises on 15 December 2009 and that Ms Rachinger and the company retook possession the following day. They commenced proceedings against Mr Goodhew on 12 May 2011 to recover damages and loss for breach of the lease agreement. At a time when Mr Goodhew was represented by solicitors he filed a defence and counterclaim on 1 July 2011. Essentially his defence and counterclaim was based on what was pleaded to be a misleading and deceptive representation made to him by Ms Rachinger…

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 Goodhew v Rachinger

Details

AGLC: Goodhew v Rachinger and Anor [2013] QDC 16
Case: [2013] QDC 16
Decision Date: 8 February 2013

CaseChat Overview and Summary

In the case of Goodhew v Rachinger, the appellant, Goodhew, sought to appeal findings made by the Magistrates Court of Queensland regarding a dispute over the purchase of a tutoring business and the subsequent lease of the business premises. The respondents, Rachinger and another party, had sued the appellant for losses incurred after he abandoned the lease. The appellant counter-claimed, alleging misleading and deceptive conduct by one of the respondents during negotiations. The Magistrate dismissed the counter-claim and awarded damages, interest, and indemnity costs in favour of the respondents.

The primary legal issue in the appeal was whether the appellant had demonstrated any error in the findings of fact made by the Magistrate, particularly regarding the alleged misleading and deceptive representation. Additionally, the appeal addressed whether new evidence introduced by the appellant was available at the time of the trial and whether it would make a material difference to the outcome. The court also considered the appellant's credibility and the reliability of the evidence presented.

The court examined the evidence presented at the trial and the new evidence introduced by the appellant. It found that the new evidence was not available at the time of the trial and would not make a material difference to the result. The court upheld the findings of fact made by the Magistrate, concluding that the appellant had not demonstrated any error in those findings. The appeal was dismissed, and the costs of the appeal were awarded to the respondents.

No further orders were made beyond the dismissal of the appeal and the awarding of costs.

Orders

Orders of the court

Appeal dismissed with costs

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.

CITATION:	Goodhew v Rachinger and Anor [2013] QDC 16
PARTIES:	ROSS VIVIAN GOODHEW (appellant) and JEANETTE ANN RACHINGER (first respondent) and VIVAD PTY LTD ACN 705646 AS TRUSTEE UNDER INSTRUMENT 706385483 (second respondent)
FILE NO/S:	D138/12
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	Maroochydore District Court
DELIVERED ON:	8^th February 2013
DELIVERED AT:	Maroochydore
HEARING DATE:	25^th January 2013
JUDGE:	Robertson DCJ
ORDER:	Appeal dismissed with costs
CATCHWORDS:	APPEAL: where appellant sought to overcome findings of fact below essentially based on credibility and reliability; where appellant seeks to introduce new evidence; whether evidence was available at trial and would in any event make a material difference to the result; where appellant purchased a tutoring business from the second respondent and entered into a lease of the business premises with it and the first respondent; where the appellant abandoned the lease and was sued by the respondents for loss as a result; where appellant counter-claimed alleging a misleading and deceptive representation to him by the second respondent in negotiations; where Magistrate dismissed counter-claim on the basis of a finding of fact that the alleged representation was not made; where damages with interest and indemnity costs were awarded in favour of respondents; whether appellant has demonstrated any error below. Legislation: Magistrates Court Act 1921 (Qld) Trade Practices Act 1974 (Qld) Uniform Civil Procedure Rules 1999 (Qld) Cases: Pickering v McArthur [2010] QCA 341.
COUNSEL:	The appellant represented himself Ms A Smith of Bosscher Lawyers for the respondents
SOLICITORS:	Appellant self represented Bosscher Lawyers for the respondents