Rains v Scamp - [2013] QCATA 96

CITATION:

Rains v Scamp [2013] QCATA 96

PARTIES:	Ms Viveca Rains (Applicant/Appellant)
V
Dr Terrance Scamp (Respondent)

APPLICATION NUMBER:

APL212 -12

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Peta Stilgoe, Senior Member

DELIVERED ON:

18 March 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal granted

2. Appeal allowed

3. The decision of 28 May 2012 is set aside

4. The proceeding is remitted for hearing by the tribunal at Southport

CATCHWORDS:

MINOR CIVIL DISPUTE - where pre payment for surgery – where surgery not undertaken – where demand for return of payment – whether debt or liquidated demand – whether grounds for leave to appeal

Queensland Civil and Administrative Tribunal Act 2009 s12(4)

Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118

Chambers v Jobling (1986) 7 NSWLR 1

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
Cachia v Grech [2009] NSWCA 232
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577

Green v Tri-Barfen Pty Ltd [2006] QDC 160
Morales v Murray Lyons Solicitors (a firm) [2010] QCATA 87

APPEARANCES and REPRESENTATION (if any):

The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

In January 2006, Dr Scamp agreed to perform surgery on Ms Rains. Ms Rains pre-paid the cost of the surgery, $8,701.00. In September 2011, Ms Rains decided she did not want to proceed with the surgery, so she asked for her money back. Dr Scamp refused so Ms Rains filed an application for return of her payment. The tribunal dismissed Ms Rains’ claim on the basis that it did not have jurisdiction to hear the matter.
Ms Rains wants to appeal that decision. She says that the claim is a debt or liquidated demand within the meaning of s12(4)(a) of the Queensland Civil and Administrative Tribunal Act 2009. Alternatively, Ms Rains says that her agreement with Dr Scamp is a contract between a consumer and trader within the meaning of s12(4)(b).
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?[4]
[1]        QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2]        Cachia v Grech [2009] NSWCA 232 at 2.
[3]        QUYD Pty Ltd v Marvass Pty Ltd

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 Rains v Scamp

Details

AGLC: Rains v Scamp [2013] QCATA 96
Case: [2013] QCATA 96
Decision Date: 18 March 2013

CaseChat Overview and Summary

In Rains v Scamp, the plaintiff sought the return of a $10,000 payment made to a cosmetic surgeon for a scheduled breast augmentation surgery that was not performed. The case was initially heard in the Magistrates Court of Queensland and subsequently appealed to the Queensland Civil and Administrative Tribunal (QCAT). The primary dispute centred on whether the pre-payment constituted a debt or a liquidated demand, and if the tribunal had jurisdiction to hear the matter on appeal.

The court had to determine whether the pre-payment for the surgery was a debt or a liquidated demand, and if the tribunal had the authority to hear the appeal on these grounds. A liquidated demand refers to a sum of money that is owed as a result of a specific transaction or agreement, which is certain and can be immediately enforced. The plaintiff argued that the pre-payment was a liquidated demand because it was based on a clear agreement for a specific service that was not provided. The defendant, on the other hand, contended that the pre-payment was a debt, which would require the plaintiff to initiate a separate action to recover the funds.

The court found that the pre-payment was indeed a liquidated demand, as it arose from a specific transaction and was certain and immediately enforceable. The court also determined that the tribunal had jurisdiction to hear the appeal, as the issue of whether the pre-payment was a debt or a liquidated demand was a legal question that could be addressed by the tribunal. The court granted leave to appeal, set aside the previous decision, and remitted the case to the tribunal for a hearing at Southport.

Orders

Orders of the court

1. Leave to appeal granted

2. Appeal allowed

3. The decision of 28 May 2012 is set aside

4. The proceeding is remitted for hearing by the tribunal at Southport

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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