Legal Research
Cases
Spalding v Kent

Spalding v Kent

Case [2022] QCATA 52 28 April 2022

Type to search within this case.

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION

Spalding v Kent [2022] QCATA 52

PARTIES: JOHN SPALDING

(applicant)

v

MURRAY JOHN KENT

(respondent)

APPLICATION NO:

APL008-21

MATTER TYPE:

Appeals

DELIVERED ON:

28 April 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 CLAIM – DEBT CLAIM – where respondent proposes to compete in motor race event- where agreement for hire of racing car – where payment for hire made to applicant owner of car – where car found to mechanically unfit to participate in race - where car withdrawn from competition – whether respondent entitled to refund of moneys paid to application – where Tribunal finds consideration wholly failed – where order made for refund – where respondent seeks leave to appeal that decision – where grounds of appeal amended or added without appropriate order – where additional grounds effectively seek to retry the matter – where limitations of application for leave considered –– whether any appellable error - where leave to appeal refused

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 64, s 142, s 143

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

Devries v Australian National Railways Commission (1993) 177 CLR 472
Felton & Anor v Raine and Horne Real Estate [2011] QCATA 330
Fox v Percy (2003) 214 CLR 118
v QFG and KG [1998] QCA 228
Lucas v Habul [2020] QCATA 53

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

Myers v Medical Practitioners Board (2007) 18 VR 48

Noonan v Osborne and Body Corporate for Spinnaker CTS 40812 [2020] QCATA 130
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
Robinson v Corr [2011] QCATA 302

Sali v SPC Limited (1993) 67 ALJR 841

Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014

Spalding v Filipetto APL 009-21

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

Worthington v Ryan [2018] QCATA 192

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

The motor raceway on Bathurst’s Mt Panorama (`the track’) is one of the best known in Australia, and, some say, one of the most dangerous. Cars that compete on it must be in top condition for the sake of competitors’ safety.[1]
[1]Spalding v Filipetto APL 009-21 Transcript of hearing 18 August 2020 (`T’) page 4 line 26.
On Easter weekend in 2018 the track hosted the annual endurance race known as the `Bathurst 6 hour’. The respondent (Kent) was keen to compete as a driver, and set about hiring a suitable car. He made a verbal arrangement with the applicant (`Spalding’) to hire and drive…

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 Spalding v Kent

Details

AGLC: Spalding v Kent [2022] QCATA 52
Case: [2022] QCATA 52
Decision Date: 28 April 2022

CaseChat Overview and Summary

In the matter of Spalding v Kent, the respondent sought leave to appeal against a decision of the Tribunal which found that the applicant, Spalding, was entitled to retain money paid to him for the hire of a racing car. The car was hired for a motor race event, but was found to be mechanically unfit to participate, and was subsequently withdrawn from the competition. The respondent argued that he was entitled to a refund of the moneys paid to Spalding, but the Tribunal found that the consideration for the hire had wholly failed, and ordered a refund. The respondent now seeks leave to appeal that decision, arguing that the Tribunal erred in its decision. The court must consider whether there are any grounds upon which an appeal could be brought, and whether leave to appeal should be granted. The legal issues before the court are whether the grounds of appeal have been properly amended or added, and whether any appellable error has occurred.

The court found that the grounds of appeal had been amended or added without the appropriate order, and that the additional grounds effectively sought to retry the matter. The court noted that an application for leave to appeal is not an opportunity for the parties to re-litigate the case, and that the grounds of appeal must be confined to points of law or errors of fact that have a significant bearing on the outcome of the case. The court also considered the limitations of the application for leave, and found that there was no appellable error. The court held that the Tribunal's decision was correct, and that there were no grounds upon which an appeal could be brought.

The court dismissed the application for leave to appeal, finding that there were no grounds upon which an appeal could be brought. The court noted that the respondent's arguments were essentially an attempt to re-litigate the matter, and that the grounds of appeal did not identify any significant legal or factual errors that would warrant an appeal. The court held that the decision of the Tribunal was correct, and that there was no appellable error. The court also noted that the respondent's arguments were not confined to points of law or errors of fact that had a significant bearing on the outcome of the case.

The final orders of the court were that the application for leave to appeal be dismissed. The court found that there were no grounds upon which an appeal could be brought, and that the decision of the Tribunal was correct. The court held that the respondent was not entitled to a refund of the moneys paid to Spalding, and that the applicant was entitled to retain the hire fee. The court also noted that the respondent's arguments were not confined to points of law or errors of fact that had a significant bearing on the outcome of the case, and that the application for leave to appeal was effectively an attempt to re-litigate the matter.

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

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.

Citations

AGLC Citation

Spalding v Kent [2022] QCATA 52

Most Recent Citation

Nicholls v Kline Industries International Pty Ltd [2022] QCATA 103

Cases citing this decision · 2 of 2 shown

Lawrence v Queensland Police Service
[2022] QCATA 134 Para 2

…Farquhar Corporation Pty Ltd [2018] QCA 202; Pivovarova ( supra ) at [4]; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Spalding v Kent [2022] QCATA 52 at [20]. [3] Pivovarova ( supra ) at [9].…
Nicholls v Kline Industries International Pty Ltd
[2022] QCATA 103 Para 28

…inds may differ, a decision cannot properly be called erroneous, simply because one conclusion has been preferred to another possible view.[55] [54][2022] QCATA 52. [55]Ibid, [20]…

View all 2 citing cases →

Cases cited in this decision · 15 of 15 shown

Noonan v Osborne and Body Corporate for Spinnaker CTS 40812
[2020] QCATA 130 Para 14

…leave application[13] has expired. [11]QCAT Act s 64; Lucas v Habul [2020] QCATA 53; Noonan v Osborne and Body Corporate for Spinnaker CTS 40812 [2020] QCATA 130. [12] Worthington v Ryan [2018] QCATA 192. [13]QCAT Act s 143(3).…
Lucas v Habul
[2020] QCATA 53 Para 14

…itional application after – perhaps long after – the normal time for filing a leave application[13] has expired. [11]QCAT Act s 64; Lucas v Habul [2020] QCATA 53; Noonan v Osborne and Body Corporate for Spinnaker CTS 40812 [2020] QCATA 130. [12] Worthington v Ryan [2018] QCATA 192. [13]QCAT Act s 143(3).…
Worthington v Ryan
[2018] QCATA 192 Para 14

…AT Act s 64; Lucas v Habul [2020] QCATA 53; Noonan v Osborne and Body Corporate for Spinnaker CTS 40812 [2020] QCATA 130. [12] Worthington v Ryan [2018] QCATA 192. [13]QCAT Act s 143(3).…
Felton and Anor v Raine and Horne Real Estate
[2011] QCATA 330 Para 19

…ical Practitioners Board (2007) 18 VR 48 at [53]. [22] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; Felton & Anor v Raine and Horne Real Estate [2011] QCATA 330 at [19].…
Robinson v Corr
[2011] QCATA 302 Para 20

…a decision cannot properly be called erroneous, simply because one conclusion has been preferred to another possible view.[26] [23] Robinson v Corr [2011] QCATA 302 at [7]. [24] Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151. [25] Fox v Percy (2003) 214 CLR 118 at 125-126; JM v QFG and KG [1998] QC…
Minister for Immigration and Citizenship v SZMDS
[2010] HCA 16 Para 20

…us JA; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479. [26] Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at [131]; In Re W (an infant) [1971] AC 682 at 700 per Lord Hailsham; Secretary of State for Education and Science v Tameside Metropolitan Borough Coun…
Aon Risk Services Australia Ltd v Australian National University
[2009] HCA 27 Para 13

…nal’s limited resources, or the patience of other litigants in the queue.[10] [10] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 217; Sali v SPC Limited (1993) 67 ALJR 841 at 843-844…
Myers v Medical Practitioners Board
[2004] VSC 532 Para 19

…een led in the first place, but were not. [21] Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151; Myers v Medical Practitioners Board (2007) 18 VR 48 at [53]. [22] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; Felton & Anor v Raine and Horne Real Estate [2011] QCATA 330 at [19].…
Fox v Percy
[2003] HCA 22 Para 20

…ible view.[26] [23] Robinson v Corr [2011] QCATA 302 at [7]. [24] Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151. [25] Fox v Percy (2003) 214 CLR 118 at 125-126; JM v QFG and KG [1998] QCA 228 at p 20 per Pincus JA; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479. [26] Min…
JM v QFG and KG
[1998] QCA 228 Para 20

…A 302 at [7]. [24] Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151. [25] Fox v Percy (2003) 214 CLR 118 at 125-126; JM v QFG and KG [1998] QCA 228 at p 20 per Pincus JA; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479. [26] Minister for Immigration and Citizenship v SZM…
Sali v SPC Ltd
[1993] HCA 47 Para 13

…her litigants in the queue.[10] [10] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 217; Sali v SPC Limited (1993) 67 ALJR 841 at 843-844…
DeVries v Australian National Railways Commission
[1993] HCA 78 Para 20

…Fox v Percy (2003) 214 CLR 118 at 125-126; JM v QFG and KG [1998] QCA 228 at p 20 per Pincus JA; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479. [26] Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at [131]; In Re W (an infant) [1971] AC 682 at 700 per Lord…
[1977] AC 1014
[1977] AC 1014 Para 20

…]; In Re W (an infant) [1971] AC 682 at 700 per Lord Hailsham; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025. Resolution…
[1971] AC 682
[1971] AC 682 Para 20

…mission (1993) 177 CLR 472 at 479. [26] Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at [131]; In Re W (an infant) [1971] AC 682 at 700 per Lord Hailsham; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025. Resolution…
Azzopardi v Tasman UEB Industries Ltd
2002 SC13437 Para 19

…merits, or to introduce evidence or arguments that might have been led in the first place, but were not. [21] Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151; Myers v Medical Practitioners Board (2007) 18 VR 48 at [53]. [22] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; Felton & Anor v Raine and Ho…

Legislation cited in this decision · 1

Queensland Civil and Administrative Tribunal Act 2009 (Qld)
32 2 mentions

CITATION	Spalding v Kent [2022] QCATA 52
PARTIES:	JOHN SPALDING
(applicant)
v
MURRAY JOHN KENT
(respondent)
APPLICATION NO:	APL008-21
MATTER TYPE:	Appeals
DELIVERED ON:	28 April 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 CLAIM – DEBT CLAIM – where respondent proposes to compete in motor race event- where agreement for hire of racing car – where payment for hire made to applicant owner of car – where car found to mechanically unfit to participate in race - where car withdrawn from competition – whether respondent entitled to refund of moneys paid to application – where Tribunal finds consideration wholly failed – where order made for refund – where respondent seeks leave to appeal that decision – where grounds of appeal amended or added without appropriate order – where additional grounds effectively seek to retry the matter – where limitations of application for leave considered –– whether any appellable error - where leave to appeal refused Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 64, s 142, s 143 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Devries v Australian National Railways Commission (1993) 177 CLR 472 Felton & Anor v Raine and Horne Real Estate [2011] QCATA 330 Fox v Percy (2003) 214 CLR 118 v QFG and KG [1998] QCA 228 Lucas v Habul [2020] QCATA 53 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 Myers v Medical Practitioners Board (2007) 18 VR 48 Noonan v Osborne and Body Corporate for Spinnaker CTS 40812 [2020] QCATA 130 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Robinson v Corr [2011] QCATA 302 Sali v SPC Limited (1993) 67 ALJR 841 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 Spalding v Filipetto APL 009-21 W (an infant, In Re) [1971] AC 682 Worthington v Ryan [2018] QCATA 192
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)