Sutton & Ors v Tomkins

Case [2017] QCATA 44


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
Agents Financial Administration Act 2014 (Qld), s 78, s 81, s 82, s 84, s 105, s 106, s 116, s 155
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 32, s 100, s 139, s 142, s 143, s 146, s 147
Property Occupations Act 2014 (Qld), s 212
Land Sales Act 1984 (Qld), s 23, s…

Continue reading Sutton & Ors v Tomkins

Sign in free to access the full text

Details
AGLC
Sutton v Tomkins [2017] QCATA 44
Case
[2017] QCATA 44
Decision Date

CaseChat Overview and Summary

Sutton & Ors v Tomkins is a case where the applicants sought to appeal against decisions made by a Tribunal, which had rejected their claims under the Property Agents and Motor Dealers Act 2000 and the Agents Financial Administration Act 2014. The applicants contested the Tribunal's conclusion that a Deposit Bond was not mishandled and that they had not established reliance on misrepresentations which a reasonable person would have relied upon and which were an inducement to contract. The applicants also sought to introduce further evidence on appeal, which the Tribunal had not considered. This case was heard and determined by the court of appeal.

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

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.