Phillips v O'Keefe
[2012] QCATA 181
•11 September 2012
| CITATION: | Phillips and Anor v O’Keefe and Anor [2012] QCATA 181 |
| PARTIES: | Geoff Phillips Ronald Phillips (Applicants/Appellants) |
| v | |
| Donna O’Keefe David O’Keefe (Respondents) |
| APPLICATION NUMBER: | APL119-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 11 September 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 11 September 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal is refused. |
| CATCHWORDS: | Minor Debt – where applicant claimed refund of a deposit – where decision by default entered regularly – where no error Queensland Civil and Administrative Tribunal Act 2009, s 142(3) QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Fox v Percy (2003) 214 CLR 118 |
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 (QCAT Act).
REASONS FOR DECISION
Mr O’Keefe agreed to buy a specialised racing engine from Mr Phillips in September 2008 at a cost of $22,728.00. The engine was sourced in the United States. Mr O’Keefe paid a deposit of $7,000.00 which Mr Phillips says was “non-refundable”. The invoice issued to the applicant contradicts this contention, despite it saying deposits are not refundable, because it also says “deposit held until sale of engine” suggesting any loss would be deducted from the deposit. Mr O’Keefe claims that when he paid the deposit there was no mention that it would not be refunded to him if he decided not to proceed.
After the engine was imported into Australia, Mr O’Keefe decided he did not want to continue with the purchase. Mr Phillips claims that he reminded Mr O’Keefe of their verbal agreement regarding the non refundable deposit of $7,000.00. Both parties attempted mediation through Mr O’Keefe’s lawyer with no resolution.
On 15 June 2011 Mr O’Keefe filed an application for a Minor Civil Dispute in the Tribunal claiming a refund of the deposit. Mr Phillips did not file a response to the application so Mr O’Keefe applied for a default decision. On 29 September 2011 the Tribunal made an order that Mr Phillips pay to Mr O’Keefe $7,000.00. A perusal of the minor civil dispute file confirms the default decision was regularly entered.
On 25 October 2011 Mr Phillips applied to have the default decision set aside. The application was considered by a Tribunal Adjudicator and refused.
Mr Phillips then applied for leave to appeal on May 21, 2012 on the following grounds:
a.The matter has already been through Brandon & Gullo lawyers for mediation and there was no resolution.
b.Mr O’Keefe was aware of the costs.
c.Mr O’Keefe knew the deposit was non refundable.
Leave to appeal is necessary as this is an appeal from a decision in the minor civil disputes jurisdiction.[1] Mr Phillips’ grounds of appeal go to the merits of his defence rather than identify error on the part of the Tribunal in not setting aside the decision by default. This is not a basis upon which leave to appeal will be granted. Leave to appeal is ordinarily granted only in accordance to established principles: Whether there is a reasonably arguable case of error in the primary decision;[2] whether leave is necessary to correct a substantial injustice to the applicant caused by some error;[3] whether the matter is of general importance of which further argument and a decision of the appellate court or tribunal, would be to the public advantage.[4]
[1] QCAT Act, s 142(3).
[2] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
Although Mr Phillips says he filed and served a “form 7”, which I take to be a response to the minor civil dispute application, it is not on the file and has not been filed in the appeal. By failing to respond to the original application filed by Mr O’Keefe a decision was made by default in accordance with the QCAT Act and Rules and therefore regularly entered. This application for leave to appeal must be based on an error of law and no error has been identified by Mr Phillips nor is any apparent.
My sole duty is to determine whether there is an error in the primary decision. It is not my task to decide where the truth lay as between the competing versions given by the parties,[5] particularly here where there has been no hearing on the merits. Therefore it is unnecessary to address Mr Phillips’ grounds for appeal as they relate to his version of transaction which go to the merits of the substantive dispute. If Mr Phillips contends that a lawful contract was entered into and Mr O’Keefe has breached that contract resulting in him suffering loss, despite this decision ordering a return of the deposit, he is within his rights to take recovery action for that loss.
[5] Fox v Percy (2003) 214 CLR 118 at 129 per Gleeson CJ, Gummow and Kirby JJ.
In the circumstances leave to appeal must be refused.
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