Laidlaw v Venturi - [2018] QCATA 143

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Laidlaw v Venturi [2018] QCATA 143

PARTIES:

GRAHAM BREBNER ANDREW LAIDLAW
(appellant)

v

KAREN VENTURI

(respondent)

APPLICATION NO:

APL032-18

ORIGINATING APPLICATION NO/S:

MCDO 98 of 2017 (Caboolture)

MATTER TYPE:

Appeals

DELIVERED ON:

28 September 2018

HEARING DATE:

26 September 2018

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes, Member

ORDERS:

The application for leave to appeal is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPLICATION FOR LEAVE TO APPEAL – GENERAL PRINCIPLES – nature and limitations of applications for leave to appeal – supply of goods by wholesaler – whether sale or on approval – whether claim barred by limitation period – whether claim liquidated – whether terms of agreement uncertain – whether onus of proof discharged

Queensland Civil and Administrative Appeals Tribunal Act (Qld) sections 10, 32, 142(3)

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Coulton v Holcombe (1986) 162 CLR 1
Devries v Australian National Railways Commission (1993) 177 CLR 472
Ferguson Ex parte; Re Alexander (1944) 45 SR (NSW) 64
Fox v Percy (2003) 214 CLR 118http://
Kagin Holdings Pty Limited v Lagazo [2018] NSWSC 1271
Mathiesen v Lawson [2018] QSC 154
Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611
Robinson v Corr [2011] QCATA 302
Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014
Snell v Morgan [2011] QCATA 316
Thompson & Anor v Jedanhay Pty Ltd [2012] QCATA 246
W (an infant) In Re [1971] AC 682
White Industries (Qld) Pty Ltd v Flower and Hart (a firm) [1998] FCA 806

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

The matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

Background

At the relevant times the appellant was a wholesale merchant, and the respondent was a retailer dealing in such desiderata as crystal rhythms, reiki earth vibrations, hair pins, pendants, bracelets and pyramids. It appears a business relationship between the parties commenced about 2007. The appellant states that he supplied goods to the respondent on a `sale or return’ basis.[1]
[1]Transcript of hearing 7 December 2017 (“T”) page 7 line 37.
On 27 July 2017 the appellant began Minor Civil Dispute proceedings against the respondent, claiming amounts of $11,044.25 and $763.70 for goods neither returned nor paid for.[2] The Response is a simple denial of liability.[3]
[2]T 27 line 9.
[3]Response filed 22 August 2017. See also T 41 line 31.
The matter was heard on 7 December 2017, when the Adjudicator dismissed the claim. The appellant now seeks to have that decision set aside.[4] Leave to appeal is required.[5]
[4]Application for leave filed 2 February 2018.
[5]QCAT Act s 142(3).
Grounds of Appeal
The application for leave alleges that:
The Member has mistakenly applied the law to the facts of the case in not accepting that the respondent took goods on account and failed to pay in full…

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 Laidlaw v Venturi

Details

AGLC: Laidlaw v Venturi [2018] QCATA 143
Case: [2018] QCATA 143
Decision Date: 28 September 2018

CaseChat Overview and Summary

Laidlaw v Venturi involved a dispute between a wholesaler and a retailer regarding the sale of goods. The respondent, Venturi, was a retailer of furniture and the appellant, Laidlaw, was a wholesaler. The central issue was whether certain furniture sold by Laidlaw to Venturi was sold on an approval basis or outright, which would impact the application of a limitation period to any claim for a refund or return of the goods. The case was heard in the Supreme Court of Queensland, and subsequently, Laidlaw applied for leave to appeal the decision.

The legal issues before the court included whether the claim was barred by the limitation period, whether the claim was liquidated and certain, and whether the onus of proof was discharged by Laidlaw. Additionally, the court had to determine the nature and limitations of applications for leave to appeal, considering whether the appeal had a reasonable chance of success and whether there were any other compelling reasons to allow the appeal.

The court dismissed the application for leave to appeal, finding that the appeal did not have a reasonable chance of success. The court held that the terms of the agreement between the parties were uncertain and that the onus of proof had not been discharged by Laidlaw. Furthermore, the court found that the claim was not liquidated and certain, which was a necessary prerequisite for leave to appeal. The court also noted that the application for leave to appeal was not made within the required time frame, further diminishing the prospects of success for the appeal. Consequently, the application for leave to appeal was dismissed.

Orders

Orders of the court

The application for leave to appeal is dismissed.

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:	Laidlaw v Venturi [2018] QCATA 143
PARTIES:	GRAHAM BREBNER ANDREW LAIDLAW (appellant)
v
KAREN VENTURI (respondent)
APPLICATION NO:	APL032-18
ORIGINATING APPLICATION NO/S:	MCDO 98 of 2017 (Caboolture)
MATTER TYPE:	Appeals
DELIVERED ON:	28 September 2018
HEARING DATE:	26 September 2018
HEARD AT:	Brisbane
DECISION OF:	Dr J R Forbes, Member
ORDERS:	The application for leave to appeal is dismissed.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPLICATION FOR LEAVE TO APPEAL – GENERAL PRINCIPLES – nature and limitations of applications for leave to appeal – supply of goods by wholesaler – whether sale or on approval – whether claim barred by limitation period – whether claim liquidated – whether terms of agreement uncertain – whether onus of proof discharged Queensland Civil and Administrative Appeals Tribunal Act (Qld) sections 10, 32, 142(3) Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Coulton v Holcombe (1986) 162 CLR 1 Devries v Australian National Railways Commission (1993) 177 CLR 472 Ferguson Ex parte; Re Alexander (1944) 45 SR (NSW) 64 Fox v Percy (2003) 214 CLR 118http:// Kagin Holdings Pty Limited v Lagazo [2018] NSWSC 1271 Mathiesen v Lawson [2018] QSC 154 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 Robinson v Corr [2011] QCATA 302 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 Snell v Morgan [2011] QCATA 316 Thompson & Anor v Jedanhay Pty Ltd [2012] QCATA 246 W (an infant) In Re [1971] AC 682 White Industries (Qld) Pty Ltd v Flower and Hart (a firm) [1998] FCA 806
APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondent:	Self-represented