Kalisimeras v Ross

Case [2020] QCATA 30

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Kalisimeras & Anor v Ross & Anor [2020] QCATA 30
PARTIES: JIMMY KALISIMERAS AND SARAH KALISIMERAS  

(applicants)

V
ALAN ROSS AND LEONI ROSS

(respondents)

APPLICATION NO:

APL253-19

ORIGINATING APPLICATION NO:

MCD200 of 2019 Southport

MATTER TYPE:

Appeals

DELIVERED ON:

11 March 2020

HEARING DATE:

6 March 2020

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes,  Member

ORDERS:

The application for leave to appeal is dismissed.

CATCHWORDS:

APPEAL – APPLICATION FOR LEAVE TO APPEAL –  purchase and importation of motor vehicle – whether FOB contract – where freight and other costs of importation not included in contract of sale – where  purchasers unable or unwilling to bear freight and other costs – where such costs not initially paid by Applicant purchasers – where second agreement for loan of moneys to purchasers to defray such costs – whether loan agreement made with vendor or Respondents – where primary Tribunal prefers claim that debt due to Respondents – whether findings of fact and credit affected by legal error – where no such error established – where leave to appeal dismissed

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 143(4)
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462
Devries v Australian National Railways Commission (1993) 177 CLR 472
Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 66
Fox v Percy (2003) 214 CLR 118
JFM v QFG and KG [1998] QCA 228
Maronai v Burns [2011] WASCA 165
Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 16) [2017] WASC 340

Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611

Montgomerie v United Kingdom Steamship Association [1891] 1 QB 370
Myers v Medical Practitioners Board (2007) 18 VR 48
N E Timber Importers v Arendt & Sons and Impresa Cerrito [1952] 2 Lloyds Rep 513
Perpetual Trustee Company Limited v Nebo Road Pty Ltd & Ors [2011] QSC 283
R v Sakail [1993] 1 Qd R 312

Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014

Threlfall v Matthew Goode & Co Ltd (1919) 26 CLR 217
Toula Holdings Pty Ltd & Ors v Morgo’s Leisure Pty Ltd & Ors [2014] QCA 201

APPEARANCES & REPRESENTATION:

Appellant: Mr W Davis, solicitor, of Stonegate Legal.

Respondent: Ms L Ross in person.

REASONS FOR DECISION  

  1. In many cases at first instance the law is tolerably clear, while the facts are complex or confused. This is such a case.

    A complex car purchase

  2. Mr and Mrs Kalisimeras (`the Applicants’) desired to purchase a Nissan motor vehicle at auction in Japan. They took elaborate steps to avoid or reduce losses due to the currency exchange rate.

  3. The prospective vendor was a Tokyo-based company, Online Garage Inc, (`Online’) the alter ego of Peter Michael Grice.

  4. The Applicants’ bank declined to advance a loan for the purchase until the vehicle arrived in Australia. The loan…

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AGLC
Kalisimeras v Ross [2020] QCATA 30
Case
[2020] QCATA 30
Decision Date

CaseChat Overview and Summary

In Kalisimeras v Ross, the applicants sought leave to appeal a decision from the Queensland Civil and Administrative Tribunal (QCAT) regarding the purchase and importation of a motor vehicle. The applicants contended that they entered into a free on board (FOB) contract with the vendor, which did not include the costs of freight and other importation charges. When the applicants were unable to pay these costs, the vendor, represented by the respondents, allegedly loaned the applicants the money needed to cover these expenses. The applicants argued that this loan constituted a separate agreement, while the respondents contended that the loan was made directly to them. QCAT found in favour of the respondents, concluding that a separate loan agreement had been made with them, not the applicants.

The primary legal issue in this case was whether QCAT's findings of fact and conclusions on the separate loan agreement were legally erroneous. The applicants argued that the Tribunal's decision was affected by a legal error, as it preferred the respondents' version of events without sufficient evidence. The applicants submitted that the Tribunal should have found that the loan agreement was made with them, not the respondents. The court considered whether an appeal court could intervene simply because it reached a different conclusion than the Tribunal, and if the Tribunal's findings were supported by evidence and rational.

The Court dismissed the application for leave to appeal, holding that the Tribunal's findings of fact and conclusions on the separate loan agreement were not legally erroneous. The Court emphasised that an appeal court cannot intervene merely because it disagrees with the Tribunal's findings, as long as those findings are supported by evidence and are rational. The Court found that QCAT's decision was based on the credibility of the witnesses and that there was no legal error in the Tribunal preferring the respondents' version of events. Consequently, the application for leave to appeal was dismissed.

No further orders were made in this case.

Orders

Orders of the court

The application for leave to appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

This finding implies a second, `separate agreement, not part of the original purchase contract’[15] involving the Respondents as parties, not agents. It is effectively an acceptance by the Tribunal of the Respondents’ case. It is not a matter of advanced cynicism to wonder why the Respondents agreed to lend a substantial sum to the Applicants, who were not, after all, the most co-operative of clients. Nevertheless, there was evidence, including corroborative material, from which that conclusion could be drawn. [15]T page 21 lines 37-38 (Adjudicator).Decision on second agreement Accordingly, on the issue of a separate loan by the Respondents to the Applicants the Adjudicator, as primary decision maker, preferred the evidence of the Respondents to that of the Applicants. That was his function[16]; it is not a prerogative of the appeal tribunal. [16]Myers v Medical Practitioners Board (2007) 18 VR 48 at [53].Nature and limits of leave application An application for leave to appeal is not an opportunity to retrace and `second guess’ findings of fact and credit made by the trial judge. It is not an appellable error to prefer one version of the facts to another, or to give less weight to one party’s case than he or she thinks it should receive. Findings of fact will rarely be disturbed if they have rational support in the evidence, even if another rational view is available.[17] Where reasonable minds may differ, a decision cannot be called erroneous simply because one conclusion is preferred to another possible view.[18] If there is evidence, or if there are available inferences which compete for the judge’s acceptance, no error of law occurs simply because the judge prefers one version of evidence to another. That is his function ... Even if the evidence is strongly one way the appeal court may not intervene simply because it reaches a different conclusion, and this, even if it regards the conclusion of the trial judge against the weight of evidence.[19][17]Fox v Percy (2003) 214 CLR 118 at 125-126.[18]Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611 at [131]; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025.[19]Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151 per Kirby P. As Pincus JA observed in JFM v QFG and KG[20]:It appears to me that a factual conclusion cannot be treated as infected by legal error unless it is supported by no evidence whatever, or unless it is clear beyond serious argument that it is wrong. That this Court merely disagrees with a factual view of a tribunal does not show that a decision based on it is legally erroneous.[20][1998] QCA 228 at 21. In Devries v Australian National Railways Commission[21] the High Court took an opportunity to remind courts of appeal that – More than once in recent years, the Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge’s finding depends to any substantial degree on ... credibility, the finding must stand unless it can be shown that the trial judge ... has acted on evidence which was inconsistent with facts incontrovertibly established ... or which was glaringly improbable.[21](1993) 177 CLR 472 at 479; followed in Toula Holdings Pty Ltd & Ors v Morgo’s Leisure Pty Ltd & Ors [2014] QCA 201 at [108]-[109]..

Ratio Decidendi

Legal Principle Established

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