Prentis v Stephens - [2022] QCATA 1

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Prentis & Anor v Stephens [2022] QCATA 1

PARTIES: CLIFF PRENTIS AND JACQUELINE PRENTIS

(applicants)

v

STEVE STEPHENS

(respondent)

APPLICATION NO:

APL257-20

MATTER TYPE:

Other minor civil dispute matters

DELIVERED ON:

7 January 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes

ORDERS:

The application for leave to appeal is dismissed

.

CATCHWORDS:

APPEAL – APPLICATION FOR LEAVE TO APPEAL – minor civil dispute – consumer dispute – where agreement for location and repair of lost boat mooring – where boat owner claims release from certain charges by repairer and part refund – where repairer counterclaim balance of moneys due for services – where claim dismissed and counterclaim allowed – where boat owner seeks leave to appeal – where no reasonably appellable ground shown – where true purpose and limitations of application for leave considered – where leave to appeal refused

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3(b), s 32, s 142
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Drew v Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359
Felton and Anor v Raine and Horne Real Estate [2011] QCATA 330
Fox v Percy (2003) 214 CLR 118http://
International Professional Services v Tritone Nominees Pty Ltd [2011] QCATA 332
JM v OFG [2000] 1 Qd R 373

Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611

Myers v Medical Practitioners Board (2007) 18 VR 48
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257
Robinson v Corr [2011] QCATA 302.
Toula Holdings Pty Ltd & Ors v Morgo’s Leisure Pty Ltd & Ors [2014] QCA 201

W (an infant) In Re [1971] AC 682

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

Introduction – a lost mooring

If one enjoys a cruise on Moreton Bay an offshore stop for a few hours is just a matter of dropping anchor. But if one wishes to stop for days, weeks or longer, a more elaborate process is involved. A licence must be obtained from Maritime Safety Queensland to moor in a designated spot precisely identified by data of latitude and longitude.
A typical mooring for small craft consists of a floating buoy tethered to a submerged foundation (or `mooring’) a tonne or more in weight. This equipment, subject as it is to salinity, tidal movements and periodic storms, requires regular maintenance. If a buoy and its concrete anchor are severed by inadequate maintenance or rough weather, relocation of the anchor-block may be quite a difficult task, particularly if the block has moved from its original, registered position.
That was the predicament of the applicants for leave (`Prentis’) when they engaged the respondent (`Stephens’) of SMBI Dive Service, Russell Island, to retrieve their mooring after a storm in 2019.
Agreement to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Prentis v Stephens

Details

AGLC: Prentis v Stephens [2022] QCATA 1
Case: [2022] QCATA 1
Decision Date: 7 January 2022

CaseChat Overview and Summary

In the matter of Prentis v Stephens, the appellant, Prentis, sought absolution from charges amounting to $350 and a refund of $310 from the respondent, Stephens. Stephens counterclaimed for an unpaid balance of $460. The matter was heard by the tribunal, which dismissed the claim and allowed the counterclaim, ordering Prentis to pay Stephens the sum of $460.

The legal issues that arose in this case were whether the tribunal had considered the facts and evidence produced by the appellant and whether there was any error of law or procedure at first instance that warranted intervention by the appeal tribunal. The tribunal found that the photographs tendered were inconclusive, and the functions and distinction between the mooring and the buoy were described to the adjudicator and accepted. The appellant's application for leave to appeal failed to indicate any error of law or procedure at first instance that warranted intervention by this appeal tribunal.

The tribunal outlined the object and limitations of an application for leave to appeal. The framers of the QCAT Act intended that decisions of the primary tribunal, especially in minor matters, should be final. The tribunal found that the application for leave to appeal failed to indicate any error of law or procedure at first instance that warranted intervention by this appeal tribunal. The application for leave to appeal was dismissed.

No orders are made as the application for leave to appeal was dismissed.

Orders

Orders of the court

The application for leave to appeal is dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Adjudicator preferred Stephens’ evidence on that point[17], and dismissed the innuendo that Stephens had inflated his charges, deliberately or incompetently, by `going all around the paddock, everywhere except for where the mooring was’.[18][17]T page 15 line 4.[18]T page 2 line 24.Claim, counterclaim and decision However Prentis, evidently preferring attack to defence, commenced these proceedings seeking absolution from that claim and other charges ($350 in all) plus a refund of $310.[19][19]Annexure to application filed 15 May 2020. Stephens counterclaimed an unpaid balance of $460.[20][20]Counter-application filed 26 May 2020. The matter was heard and decided on 16 July 2020 when the Tribunal, accepting the evidence of Stephens, dismissed the claim, allowed the counterclaim, and ordered Prentis to pay Stephens the sum of $460. The preference of Stephens’ case was not arbitrary. The learned Adjudicator stated:I prefer the evidence of the respondent ... because he comes across as somebody who is professional and has provided great detail about the reasons for the searches he did. I also accept his evidence ... that ... he provided details to Mr and Mrs Prentis in relation to the costs that were being incurred.[21][21]T page 15 lines 4 ff.Prentis appeals Prentis’ application for leave vaguely asserts that `the facts and evidence produced by the applicant were not considered by the adjudicator who appeared confused by the process of the buoy mooring search and method of mooring tackle connection’. There are no particulars of the evidence allegedly `not considered’. The photographs tendered were found to be inconclusive, for reasons detailed by Stephens and accepted by the tribunal.[22] The functions and distinction between the mooring and the buoy were described to the adjudicator and accepted by her.[23] It cannot seriously be argued that the subject decision turns upon some confusion about the object sought and eventually found by Stephens.[22]T page 12 line 5 ff, page 15 line 22.[23]T page 15 line 19. The application for leave and supporting material express dissatisfaction and disagreement, but they signally fail to indicate, even in outline, any error of law or procedure at first instance that warrants intervention by this appeal tribunal. There are no particulars of an asserted breach of the agreement on Stephens’ part. It is easy – and quite inadequate - to make a bald assertion that one’s case was not properly considered, and another – and necessary - task to specify why this is so.An application for leave to appeal – what it is and what it is not It seems apposite, then, to outline the object and limitations of an application for leave to appeal (`leave application’). The framers of the QCAT Act intended that decisions of the primary tribunal, especially in minor matters, should be final. That intention is manifest in the rule that in matters of the present kind, leave shall be a precondition to an appeal.[24] [24]QCAT Act s 3(b), s 142(3)(a)(i).

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Prentis & Anor v Stephens [2022] QCATA 1
PARTIES:	CLIFF PRENTIS AND JACQUELINE PRENTIS
(applicants)
v
STEVE STEPHENS
(respondent)
APPLICATION NO:	APL257-20
MATTER TYPE:	Other minor civil dispute matters
DELIVERED ON:	7 January 2022
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Dr J R Forbes
ORDERS:	The application for leave to appeal is dismissed .
CATCHWORDS:	APPEAL – APPLICATION FOR LEAVE TO APPEAL – minor civil dispute – consumer dispute – where agreement for location and repair of lost boat mooring – where boat owner claims release from certain charges by repairer and part refund – where repairer counterclaim balance of moneys due for services – where claim dismissed and counterclaim allowed – where boat owner seeks leave to appeal – where no reasonably appellable ground shown – where true purpose and limitations of application for leave considered – where leave to appeal refused Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3(b), s 32, s 142 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Drew v Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359 Felton and Anor v Raine and Horne Real Estate [2011] QCATA 330 Fox v Percy (2003) 214 CLR 118http:// International Professional Services v Tritone Nominees Pty Ltd [2011] QCATA 332 JM v OFG [2000] 1 Qd R 373 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 Myers v Medical Practitioners Board (2007) 18 VR 48 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257 Robinson v Corr [2011] QCATA 302. Toula Holdings Pty Ltd & Ors v Morgo’s Leisure Pty Ltd & Ors [2014] QCA 201 W (an infant) In Re [1971] AC 682
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)