Real Property Consultants Pty Ltd v Miller - [2019] QDC 262

DISTRICT COURT OF QUEENSLAND

CITATION:

Real Property Consultants Pty Ltd & Anor v Miller [2019] QDC 262

PARTIES:

REAL PROPERTY CONSULTANTS PTY LTD
(First Appellant)

and

ANDREW TOUMBAS
(Defendant by counterclaim/Second Appellant)

v

PAUL MILLER
(Defendant/Respondent)

FILE NO:

2135 of 2018

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court

DELIVERED ON:

18 December 2019

DELIVERED AT:

Brisbane

HEARING DATE:

11 February 2019

JUDGE:

Sheridan DCJ

ORDER:

1.    Appeal dismissed.

2.    The appellants pay the costs of the appeal.

3.    If an alternate order as to costs is sought, the parties are to provide written submissions by 4.00pm on 22 January 2020.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDING OF FACT – FUNCTIONS OF APPELLATE COURT – WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES – GENERALLY – where the first appellant was unsuccessful in a claim for damages in relation to a motor vehicle accident in which both the first appellant and respondent’s vehicles were damaged – where an order was made for the second appellant, as the driver of the vehicle owned by the first appellant, to pay damages to the respondent – whether magistrate erred in findings of fact

Magistrates Court Act 1921 (Qld), s 45
Uniform Civil Procedure Rules 1999 (Qld), r 765, r 782, r 785

Allesch v Maunz (2000) 203 CLR 172, cited
Australian Partners Pty Ld v Kerr [2018] QDC 148, cited
Devries v Australian National Railways Commission (1993) 177 CLR 472, cited
Dufficy v Berry [2007] QDC 227, cited
Fox v Percy [2003] 214 CLR 118, cited
Hart v Consolidated Meat Group Pty Ltd [2005] QCA 421, cited

JJ Richard & Sons Pty Ltd v Precast Concrete Pty Ltd [2010] QDC 272, cited
Lehmann v Warren & Anor [2017] QDC 69, cited
Teelow v Commissioner of Police [2009] QCA 84, cited

COUNSEL:

KA Gothard for the first and second appellants
C Templeton for the respondent

SOLICITORS:

Cantwell Lawyers for the first and second appellants
Shaw McDonald Lawyers for the respondent

This is an appeal against a judgement made in favour of the respondent on 11 May 2018 in the Brisbane Magistrates Court. The learned acting magistrate dismissed the first appellant’s claim and gave judgment for the first respondent on his counterclaim as against the second appellant in the amount of $4,983.28 plus interest and costs.

Facts

On 28 March 2016, there was a collision between a motor vehicle owned by the first appellant driven by the second appellant (the BMW), and a motor vehicle driven by the respondent (the Kia) on Ann Street in Fortitude Valley. That road is four lanes wide with all traffic flowing one-way towards Brisbane City.

The witnesses described lane 1 as being that closest to the left side of the city bound traffic, the lane to the right of that as lane 2, then lane 3 and then lane 4 on the far right side.

The first appellant alleges the…

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.

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Details

Case: [2019] QDC 262
Decision Date: 18 December 2019

CaseChat Overview and Summary

Real Property Consultants Pty Ltd and its director, Mr. Daniel Miller, appealed against a decision made by the Magistrates Court of Victoria, which found that Mr. Miller, as the driver of the vehicle owned by the company, was liable to pay damages to the respondent. The original matter concerned a motor vehicle accident in which both parties' vehicles were damaged. The lower court found that the first appellant was not entitled to damages and that the second appellant was liable for the damages incurred by the respondent.

The legal issues that arose for determination by the court were whether the magistrate had erred in making findings of fact based on the credibility of the witnesses. The appellants contended that the magistrate had failed to properly evaluate the evidence and had placed undue weight on the respondent’s version of events. The appellants further argued that the magistrate had not adequately considered the evidence presented by them and had made findings of fact that were unreasonable and not supported by the evidence.

The court held that it would not interfere with the magistrate’s findings of fact where they were based on the credibility of witnesses. The court found that the magistrate had properly evaluated the evidence and had made findings of fact that were open on the evidence. The court also held that it was not appropriate to interfere with the magistrate’s findings of fact where they were based on the credibility of witnesses, even if the court might have reached a different conclusion. The appeal was dismissed, and the appellants were ordered to pay the costs of the appeal. If an alternate order as to costs was sought, the parties were to provide written submissions by a specified date.

Orders

Orders of the court

1. Appeal dismissed.

2. The appellants pay the costs of the appeal.

3. If an alternate order as to costs is sought, the parties are to provide written submissions by 4.00pm on 22 January 2020.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Real Property Consultants Pty Ltd & Anor v Miller [2019] QDC 262
PARTIES:	REAL PROPERTY CONSULTANTS PTY LTD (First Appellant) and ANDREW TOUMBAS (Defendant by counterclaim/Second Appellant) v PAUL MILLER (Defendant/Respondent)
FILE NO:	2135 of 2018
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court
DELIVERED ON:	18 December 2019
DELIVERED AT:	Brisbane
HEARING DATE:	11 February 2019
JUDGE:	Sheridan DCJ
ORDER:	1. Appeal dismissed. 2. The appellants pay the costs of the appeal. 3. If an alternate order as to costs is sought, the parties are to provide written submissions by 4.00pm on 22 January 2020.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDING OF FACT – FUNCTIONS OF APPELLATE COURT – WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES – GENERALLY – where the first appellant was unsuccessful in a claim for damages in relation to a motor vehicle accident in which both the first appellant and respondent’s vehicles were damaged – where an order was made for the second appellant, as the driver of the vehicle owned by the first appellant, to pay damages to the respondent – whether magistrate erred in findings of fact Magistrates Court Act 1921 (Qld), s 45 Uniform Civil Procedure Rules 1999 (Qld), r 765, r 782, r 785 Allesch v Maunz (2000) 203 CLR 172, cited Australian Partners Pty Ld v Kerr [2018] QDC 148, cited Devries v Australian National Railways Commission (1993) 177 CLR 472, cited Dufficy v Berry [2007] QDC 227, cited Fox v Percy [2003] 214 CLR 118, cited Hart v Consolidated Meat Group Pty Ltd [2005] QCA 421, cited JJ Richard & Sons Pty Ltd v Precast Concrete Pty Ltd [2010] QDC 272, cited Lehmann v Warren & Anor [2017] QDC 69, cited Teelow v Commissioner of Police [2009] QCA 84, cited
COUNSEL:	KA Gothard for the first and second appellants C Templeton for the respondent
SOLICITORS:	Cantwell Lawyers for the first and second appellants Shaw McDonald Lawyers for the respondent