Neal v Wylie - [2013] QCATA 280

CITATION:

Neal v Wylie [2013] QCATA 280

PARTIES:	Kenneth Michael Neal (Appellant)
v
Lynette Wylie (Respondent)

APPLICATION NUMBER:

APL314-13

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes, Member

DELIVERED ON:

4 October 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal granted.

2. Appeal allowed.

3. The orders made herein on 6 July 2013 are set aside.

4. The proceeding instituted by application D236/12 on 23 August 2012 shall be reheard by a different Adjudicator, on a date to be advised.

5. No order as to costs.

CATCHWORDS:

MINOR CIVIL DISPUTE – CONSUMER DISPUTE – application for leave to appeal – action to recover fee or contribution to appellant/respondent for attempting to recover moneys had and received to the use of applicant – whether appellant/respondent principal or agent – whether his organisation properly co-respondent or sole respondent – whether application form apt to mislead – whether judgment debtor sufficiently identified – whether proceedings at first instance amenable to due consideration on appeal – order for rehearing

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 3, 13, 28, 29, 32, 64
Property Agents and Motor Dealers Act 2000 (Qld) ss 339, 346, 354

Dann v Gold Coast City Council [2013] QCATA 220

Brownie & Anor v Penfold [2013] QCATA 182

Wilson v Bury (1880) 5 QBD 518
Montgomerie v United Kingdom Steamship Association [1891] 1 QB 370

NE Timber Importers v Arendt & Sons and Impresa Cerrito [1952] 2 Lloyd’s Rep 513

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

The appellant Neal is director of an organisation variously described as “The White Knights” and “The White Knights for Justice Pty Ltd” which professes to –
... represent victims of injustices who [have] been deprived of receiving recognition, compensation and justice ... White symbolises purity, `Knight’ loyalty, bravery and honesty, and saviours of the realm. Today, being a White Knight is perceived as a rescuer and doing good in the community.
Two or three years ago (the precise date is unavailable and is not now material) Ms Wylie, prudently or imprudently, gave $100,000 to a Ms Orchard to invest in property on Wylie’s behalf. When Orchard failed to account for the money, Wylie asked Neal’s organisation to attempt recovery. Neal and/or the White Knights agreed to do so, on payment of $3,000. Neal describes that sum as a voluntary “contribution”; Wylie regards it as a collector’s fee, for which, she says, she has received no consideration. There is also a question of acting as an unlicensed commercial agent.[1] For reasons that will appear, I need not examine those issues now.
[1]Property Agents and Motor Dealers Act 2000 ss 339, 346, 354.
On 23 August 2012 Ms Wylie initiated a minor civil dispute, seeking “to have $3,000 returned due to non performance”. On 9 July 2013 the…

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 Neal v Wylie

Details

AGLC: Neal v Wylie [2013] QCATA 280
Case: [2013] QCATA 280
Decision Date: 4 October 2013

CaseChat Overview and Summary

The matter in question was an application for leave to appeal from a decision made in a minor civil dispute between Neal and Wylie. The applicant sought to recover fees or a contribution from the respondent for his efforts in attempting to recover moneys that were determined to have been received for the applicant's use. The case was heard in the Civil and Administrative Tribunal of New South Wales, where the initial judgment had been made.

The legal issues that the court was required to address included whether the respondent acted as a principal or an agent, whether the respondent's organisation was properly co-respondent or the sole respondent, whether the application form was apt to mislead, and whether the judgment debtor was sufficiently identified. Additionally, the court needed to determine if the proceedings at first instance were amenable to due consideration on appeal.

In its judgment, the court found that the application form was indeed apt to mislead and that the judgment debtor was not sufficiently identified. The court also concluded that the proceedings at first instance were not amenable to due consideration on appeal. Based on these findings, the court granted the leave to appeal, allowed the appeal, and set aside the orders made on 6 July 2013. The court ordered that the proceeding instituted by application D236/12 on 23 August 2012 be reheard by a different Adjudicator, with no order as to costs.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal allowed.

3. The orders made herein on 6 July 2013 are set aside.

4. The proceeding instituted by application D236/12 on 23 August 2012 shall be reheard by a different Adjudicator, on a date to be advised.

5. No order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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