| CITATION: | Sutton & Ors v Tomkins [2017] QCATA 44 |
| PARTIES: | Sandra Joanne Sutton and David John Sutton (First Applicants) Damien Edward Cahill (Second Applicant) |
| v | |
| Cecil Thomas John Tomkins (Respondent) |
| APPLICATION NUMBER: | APL469-15; APL473-15 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member O’Callaghan Member Lumb |
| DELIVERED ON: | 7 April 2017 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The applications for leave to adduce further evidence are refused. 2. The appeal is allowed in relation to the claims insofar as they are based on the alleged misrepresentations of the Respondent. 3. Otherwise, leave to appeal is refused. 4. The Tribunal’s decisions of 7 October 2015 in OCR170-14 and OCR176-14 rejecting the Applicants’ claims are set aside. 5. The matters are returned to the Tribunal for reconsideration according to law in respect of the claims insofar as they are based on the alleged misrepresentations of the Respondent. 6. It is directed that the matters be heard by way of an oral hearing. 7. The parties shall file (and serve on the other party), within 14 days of the date of these orders, written submissions (no longer than 4 pages) in respect of the question of costs of the applications and appeal. |
| CATCHWORDS: | APPEAL AND NEW TRIAL –– APPEAL – GENERAL PRINCIPLES – ADMISSISION OF FURTHER EVIDENCE – where applicants seek to adduce new evidence on appeal – whether an applicant for leave to appeal may seek to adduce further evidence before leave to appeal is granted – whether new evidence was reasonably available at the time of the decision APPEAL AND NEW TRIAL –– Leave to Appeal – where Tribunal rejected a claim against the Fund maintained under the Property Agents and Motor Dealers Act 2000 and the Agents Financial Administration Act 2014 – where Tribunal concluded a Deposit Bond was not mishandled – whether the Tribunal erred in not finding that the Deposit Bond was dealt with in a manner which engages liability for the Fund – whether leave to appeal should be granted APPEAL AND NEW TRIAL –– Leave to Appeal – where Tribunal rejected a claim against the Fund maintained under the Property Agents and Motor Dealers Act 2000 and the Agents Financial Administration Act 2014 – where Tribunal concluded the applicants had not established reliance on misrepresentations which a reasonable person would have relied upon and which were an inducement to contract – whether Tribunal erred in law in failing to provide adequate reasons Property Agents and Motor Dealers Act 2000 (Qld), s 469, s 469A, s 470, s 471, s 471A, s 472, s 473, s 488, s573, s 574 |
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- Sutton v Tomkins [2017] QCATA 44
- Case
- [2017] QCATA 44
- Decision Date
CaseChat Overview and Summary
The primary legal issues the court had to decide were whether the applicants for leave to appeal could seek to adduce further evidence before leave to appeal was granted, whether the Tribunal erred in not finding that the Deposit Bond was dealt with in a manner which engages liability for the Fund, and whether the Tribunal erred in law in failing to provide adequate reasons. The applicants argued that new evidence was reasonably available at the time of the decision, and that the Tribunal had erred in its conclusions.
The court found that the applicants were not entitled to adduce further evidence on appeal. The court held that the new evidence was not reasonably available at the time of the decision and that the applicants had not demonstrated any exceptional circumstances that warranted the introduction of new evidence. The court also found that the Tribunal had erred in its conclusions regarding the handling of the Deposit Bond and the reliance on misrepresentations. The court held that the Tribunal had failed to provide adequate reasons for its conclusions and that the applicants had established reliance on misrepresentations which a reasonable person would have relied upon and which were an inducement to contract.
The court allowed the appeal in relation to the claims insofar as they were based on the alleged misrepresentations of the Respondent, and set aside the Tribunal’s decisions of 7 October 2015 in OCR170-14 and OCR176-14 rejecting the Applicants’ claims. The matters were returned to the Tribunal for reconsideration according to law in respect of the claims insofar as they were based on the alleged misrepresentations of the Respondent, and it was directed that the matters be heard by way of an oral hearing. The parties were also directed to file written submissions in respect of the question of costs of the applications and appeal.
Orders
Orders of the court
1. The applications for leave to adduce further evidence are refused.
2. The appeal is allowed in relation to the claims insofar as they are based on the alleged misrepresentations of the Respondent.
3. Otherwise, leave to appeal is refused.
4. The Tribunal’s decisions of 7 October 2015 in OCR170-14 and OCR176-14 rejecting the Applicants’ claims are set aside.
5. The matters are returned to the Tribunal for reconsideration according to law in respect of the claims insofar as they are based on the alleged misrepresentations of the Respondent.
6. It is directed that the matters be heard by way of an oral hearing.
7. The parties shall file (and serve on the other party), within 14 days of the date of these orders, written submissions (no longer than 4 pages) in respect of the question of costs of the applications and appeal.
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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