Jomal P/L v Commercial & Consumer Tribunal - [2009] QSC 3

SUPREME COURT OF QUEENSLAND

CITATION:

Jomal P/L v Commercial & Consumer Tribunal & Ors [2009] QSC 3

PARTIES:

JOMAL PTY LTD ABN 33 010 896 468
(applicant)
v
COMMERCIAL AND CONSUMER TRIBUNAL
ABN 13 846 673 994
(first respondent)
DELPHINE POWER, MARGARET BEEVERS, DOREEN JONES, HEATHER ABERCROMBIE, DOROTHY ZORNIG, VIOLET WILSON, ELNA CUSAK, HELGA CHILLMAN, ELISABETH WOODALL, CARLYLE BALLINGER, KEITH BAKER, SYD HILL, ADOLF LABUDDA, SALLY HANRAHAN
(DECEASED)
(second respondents)

FILE NO/S:

BS3924 of 2008

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

06 February 2009

DELIVERED AT:

Brisbane

HEARING DATE:

15 August 2008

JUDGE:

Douglas J

ORDERS:

1.          An order in the nature of an order of certiorari quashing the decision of the first respondent;

2.          Declare that, upon its proper construction, the Retirement Villages Act 1999 does not preclude the applicant and the second respondents from agreeing in residence contracts that the resident is to maintain, repair and replace items owned by the applicant and which were within or affixed to their accommodation unit.

3.          Declare that the applicant is not liable to pay from the maintenance reserve fund the outstanding amounts owed to Anode Technology on account of repairs of hot water systems in the accommodation units of those second respondents who are parties to the 2001 residence contracts who have not paid the relevant accounts.

4.          Declare that the applicant is not liable to reimburse from the maintenance reserve fund those second respondents who are parties to the 2001 residence contracts who have already paid the Anode Technology account.

5.          Declare that the applicant is liable to pay from the maintenance reserve fund the outstanding amounts owed to Anode Technology on account of repairs of hot water systems in the accommodation units of those second respondents who are parties to the 1995 and 1998 residence contracts who have not paid the relevant accounts.

6.          Declare that the applicant is liable to reimburse from the maintenance reserve fund those second respondents who are parties to the 1995 and 1998 residence contracts who have already paid the Anode Technology account.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW –
REVIEWABLE DECISIONS AND CONDUCT –
DISTINCTION BETWEEN ADMINISTRATIVE AND
JUDICIAL FUNCTIONS – whether decision of Commercial and Consumer Tribunal was a decision of an administrative
character – whether decision can be set aside for lack of

jurisdiction.

ADMINISTRATIVE LAW – JUDICIAL REVIEW –
REVIEWABLE DECISIONS AND CONDUCT –
DISTINCTION BETWEEN ADMINISTRATIVE AND

JUDICIAL FUNCTIONS – whether decision of Commercial and Consumer Tribunal attended by jurisdictional error – error in construction of legislation

ADMINISTRATIVE LAW — Prerogative order — Review of decision of member of Commercial and Consumer Tribunal — Whether or not errors identified amounted to jurisdictional error — Error of law — Characterisation of tribunal

Commercial and Consumer Tribunal Act 2003, s 8, s 9, s 11, s 40, s 46, s 47, s 50, s 71, s 91, s 93, s 100(1), s 101, s 108, s 114, s 153
Judicial Review Act

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.

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Details

Case: [2009] QSC 3
Decision Date: 6 February 2009

CaseChat Overview and Summary

Jomal P/L was the subject of a proceeding brought by the Commercial & Consumer Tribunal which found that Jomal had breached its obligations under the Retirement Villages Act 1999. The Federal Court was asked to review the Tribunal's decision. The central issue was whether the Retirement Villages Act 1999 precluded the parties from agreeing in residence contracts that the residents were to maintain, repair and replace items owned by Jomal within or affixed to their accommodation unit. A related issue was whether Jomal was liable to pay from the maintenance reserve fund the outstanding amounts owed to Anode Technology on account of repairs of hot water systems in the accommodation units of those second respondents who were parties to the 1995, 1998 and 2001 residence contracts who had not paid the relevant accounts. The Court found that the Retirement Villages Act 1999 did not preclude the parties from agreeing in residence contracts that the residents were to maintain, repair and replace items owned by Jomal within or affixed to their accommodation unit. Further, the Court found that Jomal was liable to pay from the maintenance reserve fund the outstanding amounts owed to Anode Technology on account of repairs of hot water systems in the accommodation units of those second respondents who were parties to the 1995 and 1998 residence contracts who had not paid the relevant accounts. However, the Court found that Jomal was not liable to pay from the maintenance reserve fund the outstanding amounts owed to Anode Technology on account of repairs of hot water systems in the accommodation units of those second respondents who were parties to the 2001 residence contracts who had not paid the relevant accounts. The Court also found that Jomal was liable to reimburse from the maintenance reserve fund those second respondents who were parties to the 1995 and 1998 residence contracts who had already paid the Anode Technology account. However, the Court found that Jomal was not liable to reimburse from the maintenance reserve fund those second respondents who were parties to the 2001 residence contracts who had already paid the Anode Technology account. The orders were that the decision of the Tribunal was quashed, and that the applicant was not liable to pay from the maintenance reserve fund the outstanding amounts owed to Anode Technology on account of repairs of hot water systems in the accommodation units of those second respondents who were parties to the 2001 residence contracts who had not paid the relevant accounts. The applicant was also not liable to reimburse from the maintenance reserve fund those second respondents who were parties to the 2001 residence contracts who had already paid the Anode Technology account.

Orders

Orders of the court

1. An order in the nature of an order of certiorari quashing the decision of the first respondent;

2. Declare that, upon its proper construction, the Retirement Villages Act 1999 does not preclude the applicant and the second respondents from agreeing in residence contracts that the resident is to maintain, repair and replace items owned by the applicant and which were within or affixed to their accommodation unit.

3. Declare that the applicant is not liable to pay from the maintenance reserve fund the outstanding amounts owed to Anode Technology on account of repairs of hot water systems in the accommodation units of those second respondents who are parties to the 2001 residence contracts who have not paid the relevant accounts.

4. Declare that the applicant is not liable to reimburse from the maintenance reserve fund those second respondents who are parties to the 2001 residence contracts who have already paid the Anode Technology account.

5. Declare that the applicant is liable to pay from the maintenance reserve fund the outstanding amounts owed to Anode Technology on account of repairs of hot water systems in the accommodation units of those second respondents who are parties to the 1995 and 1998 residence contracts who have not paid the relevant accounts.

6. Declare that the applicant is liable to reimburse from the maintenance reserve fund those second respondents who are parties to the 1995 and 1998 residence contracts who have already paid the Anode Technology account.

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:	Jomal P/L v Commercial & Consumer Tribunal & Ors [2009] QSC 3
PARTIES:	JOMAL PTY LTD ABN 33 010 896 468 (applicant) v COMMERCIAL AND CONSUMER TRIBUNAL ABN 13 846 673 994 (first respondent) DELPHINE POWER, MARGARET BEEVERS, DOREEN JONES, HEATHER ABERCROMBIE, DOROTHY ZORNIG, VIOLET WILSON, ELNA CUSAK, HELGA CHILLMAN, ELISABETH WOODALL, CARLYLE BALLINGER, KEITH BAKER, SYD HILL, ADOLF LABUDDA, SALLY HANRAHAN (DECEASED) (second respondents)
FILE NO/S:	BS3924 of 2008
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	06 February 2009
DELIVERED AT:	Brisbane
HEARING DATE:	15 August 2008
JUDGE:	Douglas J
ORDERS:	1. An order in the nature of an order of certiorari quashing the decision of the first respondent; 2. Declare that, upon its proper construction, the Retirement Villages Act 1999 does not preclude the applicant and the second respondents from agreeing in residence contracts that the resident is to maintain, repair and replace items owned by the applicant and which were within or affixed to their accommodation unit. 3. Declare that the applicant is not liable to pay from the maintenance reserve fund the outstanding amounts owed to Anode Technology on account of repairs of hot water systems in the accommodation units of those second respondents who are parties to the 2001 residence contracts who have not paid the relevant accounts. 4. Declare that the applicant is not liable to reimburse from the maintenance reserve fund those second respondents who are parties to the 2001 residence contracts who have already paid the Anode Technology account. 5. Declare that the applicant is liable to pay from the maintenance reserve fund the outstanding amounts owed to Anode Technology on account of repairs of hot water systems in the accommodation units of those second respondents who are parties to the 1995 and 1998 residence contracts who have not paid the relevant accounts. 6. Declare that the applicant is liable to reimburse from the maintenance reserve fund those second respondents who are parties to the 1995 and 1998 residence contracts who have already paid the Anode Technology account.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DISTINCTION BETWEEN ADMINISTRATIVE AND JUDICIAL FUNCTIONS – whether decision of Commercial and Consumer Tribunal was a decision of an administrative character – whether decision can be set aside for lack of jurisdiction. ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DISTINCTION BETWEEN ADMINISTRATIVE AND JUDICIAL FUNCTIONS – whether decision of Commercial and Consumer Tribunal attended by jurisdictional error – error in construction of legislation ADMINISTRATIVE LAW — Prerogative order — Review of decision of member of Commercial and Consumer Tribunal — Whether or not errors identified amounted to jurisdictional error — Error of law — Characterisation of tribunal Commercial and Consumer Tribunal Act 2003, s 8, s 9, s 11, s 40, s 46, s 47, s 50, s 71, s 91, s 93, s 100(1), s 101, s 108, s 114, s 153 Judicial Review Act