McCracken v Nespoli

[2020] QCATA 107

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

McCracken v Nespoli [2020] QCATA 107

PARTIES:

ORIN MCCRACKEN

(applicant/appellant)

v

NATASHA NESPOLI

(respondent)

APPLICATION NO/S:

APL092-19

ORIGINATING APPLICATION NO/S:

MVDO298-18 (Maroochydore)

MATTER TYPE:

Appeals

DELIVERED ON:

21 July 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

1.   Leave to appeal granted.

2.   Appeal allowed.

3.   The decision made 14 February 2019 is set aside.

4.   The respondent pay the applicant the sum of $220 for claim plus interest of $26.40 plus allowable costs of $76.65 within 14 days of order.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where the appellant had brought minor debt proceedings claiming the balance owed for sale of a massage table to the respondent – where Justices of the Peace took evidence at hearing and allowed the respondent to recover on a purported counter application – where there is no counter application permitted in minor debt proceedings – where leave to appeal granted – whether the appellant was entitled to claim costs of appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 102(2), s 147(2)

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 84

Maszlik v Lorraine Palmer t/as Bundaberg Park Lodge [2016] QCATA 94

Pickering v McArthur [2005] QCA 294

REPRESENTATION:
Applicant:	Self-represented
Respondent:	Self-represented
APPEARANCES:	This 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

1. The applicant Ms McCracken commenced minor debt proceedings in the tribunal against Ms Nespoli claiming $220 as the balance of monies owing her for the sale of a massage table. Ms McCracken also claimed for her filing fee, service fee and interest.

2. Ms McCracken and Ms Nespoli had been friends. Ms Nespoli agreed to work for Ms McCracken for a share of the charges for massages performed by Ms Nespoli for Ms McCracken’s massage parlour clients.

3. Ms McCracken also agreed to sell a spare massage table to Ms Nespoli. They agreed that Ms Nespoli could pay it off over time.

4. According to Ms McCracken the sale price was $400. According to Ms Nespoli it was $200.

5. The claim came on for hearing before Justices of the Peace. They heard from both parties. The order they made was that the applicant, Ms McCracken, pay the respondent, Ms Nespoli, $330.

6. Ms McCracken seeks leave to appeal that decision.

7. Given this is an appeal from a decision made in the Tribunal’s minor civil dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.[1] 

   [1]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i).

8. Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.[2] 

   [2]Pickering v McArthur [2005] QCA 294.

9. The grounds of appeal are essentially two-fold:

   (a)Ground…