Nguyen v Doan

[2010] QCATA 113

CITATION: Nguyen v Doan  [2010] QCATA 113

PARTIES:	Chi Kim Thi Nguyen (Applicant/Appellant)
v
Thi Ngoc Thuy Doan (Respondent)

APPLICATION NUMBER:   APL205-10

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON: 15 December 2010

DELIVERED AT: Brisbane

ORDERS MADE:      Application for leave to appeal refused.

CATCHWORDS : 

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where applicant alleged breach of contract – where learned Adjudicator did not find breach – whether learned Adjudicator took into account irrelevant factors – whether learned Adjudicator failed to take into account relevant factors – whether Appellant denied natural justice

Queensland Civil and Administrative Tribunal Act 2009 s142(3)(a)

REASONS FOR DECISION

[1]      Ms Nguyen entered into a business contract with Ms Doan to sell her a Takeaway snack bar on 17 October 2008.  On 25 March 2010 Ms Nguyen brought a minor civil dispute application for $6,403.06 for breach of that contract.  The core issue in regards to the alleged breach was whether or not the lease for a coffee machine had been properly assigned in the sale. The matter was heard in Brisbane on 17 August 2010 before a QCAT Adjudicator, who awarded Ms Nguyen $348.

[2]      On 14 September 2010 Ms Nguyen lodged an application for leave to appeal (and, if successful to appeal) that decision.  Leave is necessary to appeal from a minor civil dispute decision of QCAT.[1] Ms Nguyen also brought an application for leave to be represented.  Given the matter proceeded on the papers, it was not necessary for leave to be granted.  It is apparent that Ms Nguyen was assisted by lawyers (T Lawyers Pty Ltd) in preparing her submissions.

[1] Queensland Civil and Administrative Tribunal Act 2009 s142(3)(a)

[3]      Ms Nguyen’s grounds of appeal are:

(a)     The Adjudicator erred by taking into account and relying upon irrelevant factors for example “the respondent didn’t have any money to pay the debt”;

(b)     The learned Adjudicator failed to take into account the standard conditions stipulated under the contract of sale; and

(c)     Ms Nguyen was denied the opportunity to make counter submissions.

[4]      Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and reasonable prospect that the applicant would obtain further substantive relief.

[5]      Grounds 1 and 3 are wholly without merit.  As to ground 1, the transcript of the proceedings reveals that the financial status of Ms Doan never came up.  It is also evident that the learned Adjudicator did not take into account any other “irrelevant” matters. 

[6]      As to ground 3, both parties communicated during the hearing predominantly via the same interpreter.  He appeared to have relayed their communication adequately to the Tribunal, both parties making their submissions and giving their evidence on oath.  Ms Nguyen was not apparently prevented from speaking either herself (which she did occasionally), or through the interpreter. 

[7]      As to ground 2, Ms Nguyen’s original minor civil disputes claim was made on the basis that Ms Doan breached standard REIQ clause 15.3:

If the Service Agreement is not terminated by the date of Completion and if clause 15.1 does not apply then:

The Buyer agrees to perform that service Agreement on behalf of the Seller; and

The Buyer must indemnify the Seller against all liability arising from any such Service Agreement in respect of any act, matter or thing which occurs on or after the date of completion.

[8]      The transcript of the proceeding demonstrates that the learned Adjudicator made his decision following careful consideration of the evidence before him about the assignment of the lease, from both parties, and with direct reference to the standard clause to which he was referred

[9]      The learned Adjudicator concluded that the Applicant could not claim an indemnity under standard condition 15.3(b) because the condition expressly stated “if clause 15.1 does not apply” but, in the circumstances here, that condition did apply:

With the consent of the owner or service provider, as the case may be (but not otherwise), the Seller assigns to the Buyer and the Buyer accepts as at the date of Completion the benefit and burden of…

[10]      It was clear on the evidence before the Tribunal that the service provider did not consent to have the lease assigned to Ms Doan.  There was therefore, no “service agreement” in place; it followed that there was no assignment of the liabilities and therefore the applicant could not seek to be indemnified against “all liability arising from any such Service Agreement.”  The learned Adjudicator explained how he reached that conclusion, but also awarded $348 to Ms Nguyen for rental charges on the coffee machine for the period Ms Doan had the benefit of its use prior to its repossession – and, again, explained how he decided that award should be made.

[11]      Nothing in the process of reasoning by which the learned Adjudicator reached his decision has been shown to reveal any mistake, of law or fact. 

[12]      Ms Nguyen has not, then, demonstrated an arguable case of error in the primary decision.  As there is no question of general importance in the present matter necessitating a decision of the Appeal Tribunal, leave to appeal should be refused.