O'Leary v Girven

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

O’Leary v Girven [2022] QCATA 181

PARTIES:

John James O’Leary

(applicant)

V

Dianne Mary Girven

(respondent)

APPLICATION NO:

APL349-21

ORIGINATING APPLICATION NO:

Q28 of 2021

MATTER TYPE:

Appeals

DELIVERED ON:

8 December 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member WA Isdale

ORDERS:

1.     Leave to appeal is refused.

2.     The Adjudicator’s decision is confirmed.

3.     The application for costs is refused.

CATCHWORDS:

APPEAL – GENERAL PRINCIPLES – LEAVE TO APPEAL – where appellant purchased a horse – where horse was in unsatisfactory condition upon delivery – whether the Tribunal failed to afford natural justice

Queensland Civil and Administrative Tribunal Act 2009
s 32

Kioa v West (1985) 159 CLR 550

Peter Pershouse v Kydren Holdings Pty Ltd [2022] QCA 179

APPEARANCES & REPRESENTATION: 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. This is an application for leave to appeal. If granted, the appeal will be heard at the same time. The matter will be heard on the papers and determined on the material which the parties have chosen to put before the Tribunal.

2. In order to fully appreciate the dispute between the parties it is useful to have some reference to the record of the decision which is sought to be challenged, the decision of the Adjudicator made on 26 November 2021 at Sandgate. The hearing commenced at 1:43pm and concluded at 2:29pm. The Adjudicator gave an ex-tempore decision which is recorded in about 2 pages of the transcript wherein the reasons for decision and the orders of the Tribunal are set out.

3. Ms Girven attended in person and Mr O’Leary by telephone. The parties stated their cases. Reduced to its essentials, the dispute revolved around the contention by Ms Girven that she had sold the horse, a 4-year-old, to Mr O’Leary who in turn maintained that there was no sale and the horse was transported from Queensland to Mr O’Leary in South Australia for a trial, to be test ridden.

4. Mr O’Leary stated that:[1]

   … it was never a sale. It was intended to be a sale, and that was going to be the basis of the sale if the horse stood.

   [1]T1-11, lines 27-28.

5. The case for the applicant was that there had been a sale for $30,000, of which $10,000 had been paid and where the balance of $20,000 was due and payable.

6. The Adjudicator, in the reasons for decision, observed that the original text messages between the parties referred to the vendor agreeing to sell the horse to the purchaser, who agreed to buy it for $30,000, upon conditions set out.

7. The Adjudicator made further findings of fact, being that a deposit of $10,000 was paid on 23 October 2020 and that the horse could then be transported to South Australia, which occurred. The balance of $20,000 was to be paid on settlement of a contract for…