Noelib Pty Ltd v Clarke

[2000] QCA 67

[2000] QCA 67

COURT OF APPEAL

PINCUS JA
DAVIES JA
THOMAS JA

Appeal No 11414 of 1999
DC No 1093 of 1998

NOELIB PTY LTD  (Third Party)          Applicant

and

BARRY ANTHONY CLARKE   (Plaintiff)                 First Respondent

and

KENNETH F BANFIELD
ANNEE G BANFIELD  (Defendants)          Second Respondents

BRISBANE

DATE 13/03/2000

JUDGMENT

DAVIES JA:  In my opinion notwithstanding the argument of Mr Myers of counsel for the applicant there is no question of law necessarily arising under either the Residential TenanciesAct or the Property Law Act or any other question of sufficient significance to justify a grant of leave to appeal to this Court.  Accordingly, I would refuse the application.

PINCUS JA:  I agree.

THOMAS JA: I take the view that it is arguable that liability based on s.103 of the Residential Tenancies Act 1994 or on s.106 of the Property Law Act 1974 is not soundly based. However, there is no reason to think that any error on the part of the learned trial Judge in basing the judgment on contract rather than tort would lead to any different result in the end. His Honour indicated that he would not be prepared to find contributory negligence even if that issue arose before him. On the evidence in the case it would seem to have been at least open to his Honour to take that view.

In the end then I do not see this case as an appropriate vehicle for consideration of further legal questions.  I do not consider that any injustice will be caused by the refusal of the application.  I agree with the order proposed by Justice Davies.

DAVIES JA:  The application is refused.

MR LYNCH:  I'd ask for costs, your Honour.

MR SOWDEN:  I'd ask for costs also.

DAVIES JA:  Can you say anything about that, Mr Myers?

MR MYERS:  I can't say anything about it, your Honour.

DAVIES JA:  With costs in each case.

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