Steele t/as Mission Beach Pool & Property Services v Bushell - [2013] QCATA 83

CITATION:

Steele t/as Mission Beach Pool & Property Services v Bushell [2013] QCATA 83

PARTIES:	Mr Christopher Thomas Steele t/as Mission Beach Pool & Property Services (Applicant/Appellant)
V
Mr Ernest Bushell (Respondent)

APPLICATION NUMBER:

APL353 -12

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Peta Stilgoe, Senior Member

DELIVERED ON:

13 March 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – whether grounds for leave to appeal

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

Chambers v Jobling (1986) 7 NSWLR 1, cited

Croney v Nand[1998] QCA 367; [1999] 2 Qd R 342, cited
Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd[2008] QCA 322, cited
Chief Executive Officer, Department for Child Protection v S[2007] WASCA 230, cited

Kostopoulos v G E Commercial Finance Australia Pty Ltd , cited

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

Cyclone Yasi destroyed Mr Bushell’s home in Cardwell. It also damaged his pool. Mr Bushell engaged Mr Steele to restore his pool but he was not happy with the result. He filed an application in the Tribunal claiming a refund of the money he paid to Mr Steele.
The dispute came on for hearing late in the afternoon of 10 July 2012. With Mr Steele’s agreement, the learned Adjudicator took evidence from Mr Bushell and then adjourned the hearing. The learned Adjudicator directed that copies of exhibits be sent to Mr Steele and that he have 21 days to file and serve submissions in response. Mr Steele sent a letter to the Tribunal in compliance with the learned Adjudicator directions. She was not persuaded by those submissions and ordered Mr Steele pay Mr Bushell $9,376.46
Mr Steele wants to appeal that decision. He says he misunderstood the Tribunal’s order of 10 July 2012 so that he responded only to the exhibits, not the issues. Mr Steele wants the opportunity to make further submissions and provide further evidence on the issue.
Because this is an appeal from the Tribunal’s 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…

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: [2013] QCATA 83
Decision Date: 13 March 2013

CaseChat Overview and Summary

In Steele t/as Mission Beach Pool & Property Services v Bushell, the appellant sought to appeal against a decision of the Magistrates Court of Queensland, which dismissed an action for damages in contract. The appellant, Steele, trading as Mission Beach Pool & Property Services, alleged that the respondent, Bushell, breached a contract for the maintenance of a pool at a property. Steele claimed damages for the cost of rectifying the pool and the loss of profit. The Magistrates Court dismissed the action, finding that Steele had failed to prove the necessary elements of a contract claim.

The primary legal issue before the court was whether the grounds for leave to appeal were established. The appellant contended that the Magistrate erred in her interpretation of the contract, the assessment of damages, and the applicability of certain defences. Steele argued that the Magistrate failed to properly consider the evidence and misapplied the law. The respondent maintained that the appeal should be dismissed as the findings of the Magistrate were correct and the appeal had no reasonable prospect of success.

The court found that the grounds for leave to appeal were not established. The appeal was considered to be a minor civil dispute, and the court held that there was no significant question of law or mixed questions of law and fact that warranted the intervention of the appeal court. The court noted that the appeal was an attempt to relitigate the case rather than address any substantial error of law. The court further found that the evidence and findings of the Magistrate were well within the bounds of reasonable possibility and that there was no miscarriage of justice that warranted an appeal. Accordingly, the court refused leave to appeal.

As a result, the appeal was dismissed, and leave to appeal was refused. The decision of the Magistrates Court remained binding, and Steele's action for damages was unsuccessful.

Orders

Orders of the court

Leave to appeal refused.

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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