Goodhew v Rachinger - [2013] QCA 348

SUPREME COURT OF QUEENSLAND

CITATION:

Goodhew v Rachinger & Anor [2013] QCA 348

PARTIES:

ROSS VIVIAN GOODHEW
(applicant)
v
JEANETTE ANN RACHINGER
(first respondent)
VIVAD PTY LTD ACN 066 705 646 AS TRUSTEE UNDER INSTRUMENT 706385483
(second respondent)

FILE NO/S:

Appeal No 2407 of 2013
DC No 138 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

22 November 2013

DELIVERED AT:

Brisbane

HEARING DATE:

5 September 2013

JUDGES:

Margaret McMurdo P, Gotterson JA and Margaret Wilson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for leave to appeal is refused with costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where the applicant entered into a contract to purchase a tutoring business from the second respondent – where, as a condition of the business contract, the applicant required a new lease of the premises which was granted to him by the respondents – where the applicant left the premises prior to the end of the term of the lease – where the respondents retook possession and commenced proceedings to recover damages and loss for breach of the lease – where, at trial, the key issue was whether the applicant established that the first respondent had made a misrepresentation that induced him to complete the purchase of the business and enter into the lease – where a magistrate found for the respondents and ordered the applicant pay the respondents damages for breach of lease together with interest and costs – where the applicant's appeal to the District Court was dismissed with costs – where the applicant seeks leave to appeal from the decision of the District Court judge – whether the District Court judge was in error and the interests of justice warrant this Court's intervention

District Court of Queensland Act 1967 (Qld), s 118(3)
Magistrates Courts Act 1921 (Qld), s 45
Trade Practices Act 1974 (Cth), s 52

COUNSEL:

The applicant appeared on his own behalf
S M Gerber for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Bosscher Lawyers for the respondent

MARGARET McMURDO P: On 13 July 2012, a magistrate ordered the applicant, Ross Goodhew, to pay the first respondent, Jeanette Rachinger, and the second respondent, Vivad Pty Ltd as Trustee under Instrument 706385483, a company controlled by Ms Rachinger, damages of $29,911.36 for breach of lease, together with interest and costs.[1] He appealed against that order under s 45 Magistrates Courts Act 1921 (Qld) to the District Court. His appeal was dismissed with costs on 8 February 2013.[2] He sought to pursue a further appeal in this Court but first he requires leave to appeal under s 118(3) District Court of Queensland Act 1967 (Qld). Instead of an application for leave to appeal, he completed a notice of appeal which was…

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 & Anor [2013] QCA 348
Case: [2013] QCA 348
Decision Date: 22 November 2013

CaseChat Overview and Summary

Goodhew v Rachinger involved a dispute over a breach of lease agreement between the applicant and the respondents. The applicant had entered into a contract to purchase a tutoring business from the second respondent, which required a new lease of the premises to be granted to him by the respondents. The applicant left the premises prior to the end of the term of the lease, leading to the respondents retaking possession and commencing proceedings to recover damages and loss for breach of the lease. The key issue at trial was whether the applicant established that the first respondent had made a misrepresentation that induced him to complete the purchase of the business and enter into the lease. The magistrate found for the respondents and ordered the applicant to pay the respondents damages for breach of lease together with interest and costs. The applicant's appeal to the District Court was dismissed with costs, and the applicant now seeks leave to appeal from the decision of the District Court judge.

The primary legal issue before the court was whether the District Court judge erred in dismissing the applicant's appeal and whether the interests of justice warranted the Court's intervention. The applicant argued that the District Court judge erred in dismissing his appeal by failing to properly consider the evidence and the law relating to misrepresentation. The respondents contended that the District Court judge correctly dismissed the appeal and that there were no grounds for the Court to intervene. The court considered the arguments of both parties and the evidence presented at trial. It found that the District Court judge had properly considered the evidence and the law, and that there were no grounds for the Court to intervene. The court held that the District Court judge was correct in dismissing the applicant's appeal and that the interests of justice did not warrant the Court's intervention.

The court's reasoning was based on a detailed analysis of the evidence presented at trial and the legal principles applicable to the case. The court found that the applicant had not established that the first respondent had made a misrepresentation that induced him to complete the purchase of the business and enter into the lease. The court held that the applicant's case was speculative and that there was no evidence to support his claims. The court also found that the District Court judge had properly considered the evidence and the law, and that there were no grounds for the Court to intervene. The court held that the interests of justice did not warrant the Court's intervention, and that the applicant's appeal should be dismissed with costs. The final orders of the court were that the application for leave to appeal is refused with costs.

Orders

Orders of the court

The application for leave to appeal is refused with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Goodhew v Rachinger & Anor [2013] QCA 348
PARTIES:	ROSS VIVIAN GOODHEW (applicant) v JEANETTE ANN RACHINGER (first respondent) VIVAD PTY LTD ACN 066 705 646 AS TRUSTEE UNDER INSTRUMENT 706385483 (second respondent)
FILE NO/S:	Appeal No 2407 of 2013 DC No 138 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	22 November 2013
DELIVERED AT:	Brisbane
HEARING DATE:	5 September 2013
JUDGES:	Margaret McMurdo P, Gotterson JA and Margaret Wilson J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application for leave to appeal is refused with costs.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where the applicant entered into a contract to purchase a tutoring business from the second respondent – where, as a condition of the business contract, the applicant required a new lease of the premises which was granted to him by the respondents – where the applicant left the premises prior to the end of the term of the lease – where the respondents retook possession and commenced proceedings to recover damages and loss for breach of the lease – where, at trial, the key issue was whether the applicant established that the first respondent had made a misrepresentation that induced him to complete the purchase of the business and enter into the lease – where a magistrate found for the respondents and ordered the applicant pay the respondents damages for breach of lease together with interest and costs – where the applicant's appeal to the District Court was dismissed with costs – where the applicant seeks leave to appeal from the decision of the District Court judge – whether the District Court judge was in error and the interests of justice warrant this Court's intervention District Court of Queensland Act 1967 (Qld), s 118(3) Magistrates Courts Act 1921 (Qld), s 45 Trade Practices Act 1974 (Cth), s 52
COUNSEL:	The applicant appeared on his own behalf S M Gerber for the respondent
SOLICITORS:	The applicant appeared on his own behalf Bosscher Lawyers for the respondent