| CITATION: | Pomroy v Emmetlow Pty Ltd [2014] QCATA 074 |
| PARTIES: | Gregory Malcolm Pomroy (Appellant) |
| v | |
| Emmetlow Pty Ltd (t/a Colonial Village) (Respondent) |
| APPLICATION NUMBER: | APL541-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 11 April 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for leave to appeal is granted. 2. The appeal is allowed. 3. The respondent Emmetlow Pty Ltd, its servants or agents, shall, by 4 pm on 28 April 2014 produce and give the appellant access to – (a) all documents in its possession or power evidencing charges to, and payments by the respondent Emmetlow Pty Ltd for water, electricity and gas purchased by it and supplied to the appellant Pomroy’s home site from 1 March 2011 to the date of inspection; and (b) all accounts rendered by the respondent Emmetlow Pty Ltd to the appellant for his use of, and access to such water, electricity and gas from 1 March 2011 to the date of inspection. 4. The appellant shall be at liberty, at reasonable times and at his own expense, to make copies of, or extracts from, the said documents. 5. The appellant may file and serve an amended claim for the alleged excess charges, particularised by reference to the documents searched in Order 3, by 4pm on Friday 23 May 2014. 6. In the event that an amended claim is filed, the respondent must file a response to that application, two weeks following the 23 May 2014 and, application OCL065-13 be returned to the Tribunal for a directions hearing four weeks after the 23 May 2014. 7. If the appellant does not file an amended claim, the application OCL065-13 is dismissed without further order. 8. The question of costs, if any, is reserved. |
| CATCHWORDS: | APPEALS – OTHER CIVIL CLAIMS – MANUFACTURED HOMES DISPUTE – Manufactured Homes (Residential Parks) Act 2003 – charges to home owners for essential services – whether charges exceeding rates permitted by law – whether a justiciable claim presented – whether prior decision that no such claim presented renders present application res judicata – whether prior decision a decision on the merits – whether primary tribunal erred in applying res judicata rule – whether present application properly formulated – whether present application should be dismissed on procedural grounds – order for discovery and hearing on merits if money claim properly pleaded – in default of proper pleading, application for dismissal may be renewed Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 32, 143, 216 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Baines v State Bank of New South Wales [1985] 2 NSWLR 729 Body Corporate for Bayview Shores v Bermingham and Anor [2012] QCATA 183 |
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- AGLC
- Pomroy v Emmetlow Pty Ltd [2014] QCATA 74
- Case
- [2014] QCATA 74
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the doctrine of res judicata applied to bar Pomroy's second application, whether the primary tribunal correctly identified the previous decision as a decision on the merits, and whether the primary tribunal erred in applying the res judicata rule. Additionally, the court considered whether Pomroy's application was properly formulated and whether it should be dismissed on procedural grounds if the claim was not properly pleaded.
The court found that the primary tribunal had erred in applying the res judicata rule. The previous decision had been made on procedural grounds, not on the merits, and thus did not constitute a final determination of the issues at hand. The court further held that Pomroy's application, while initially flawed, could be remedied by allowing Pomroy to amend the claim to particularise the alleged excess charges. Consequently, the appeal was allowed, and the respondent was ordered to produce relevant documents. Pomroy was given the opportunity to file an amended claim, with a subsequent hearing scheduled if the amended claim was filed. If Pomroy did not file an amended claim, the application was to be dismissed without further order. The question of costs was reserved for later determination.
Orders
Orders of the court
1. The application for leave to appeal is granted.
2. The appeal is allowed.
3. The respondent Emmetlow Pty Ltd, its servants or agents, shall, by 4 pm on 28 April 2014 produce and give the appellant access to –
(a) all documents in its possession or power evidencing charges to, and payments by the respondent Emmetlow Pty Ltd for water, electricity and gas purchased by it and supplied to the appellant Pomroy’s home site from 1 March 2011 to the date of inspection; and
(b) all accounts rendered by the respondent Emmetlow Pty Ltd to the appellant for his use of, and access to such water, electricity and gas from 1 March 2011 to the date of inspection.
4. The appellant shall be at liberty, at reasonable times and at his own expense, to make copies of, or extracts from, the said documents.
5. The appellant may file and serve an amended claim for the alleged excess charges, particularised by reference to the documents searched in Order 3, by 4pm on Friday 23 May 2014.
6. In the event that an amended claim is filed, the respondent must file a response to that application, two weeks following the 23 May 2014 and, application OCL065-13 be returned to the Tribunal for a directions hearing four weeks after the 23 May 2014.
7. If the appellant does not file an amended claim, the application OCL065-13 is dismissed without further order.
8. The question of costs, if any, is reserved.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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