Thundiyil v Madappan
[2013] QCATA 43
•25 February 2013
| CITATION: | Thundiyil v Madappan [2013] QCATA 43 |
| PARTIES: | Jayanarayan Thundiyil (Applicant/Appellant) |
| v | |
| Suneer Madappan (Respondent) |
| APPLICATION NUMBER: | APL345-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 25 February 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | MINOR CIVIL DISPUTE – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act2009, ss 32, 139(5) Chambers v Jobling (1986) 7 NSWLR 1 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Mr Madappan and Mr Thundiyil agreed that Mr Madappan would buy and operate a petrol station. Mr Madappan paid Mr Thundiyil $70 091.46 to cover the purchase of a business plus stock but the deal fell through. Mr Thundiyil repaid Mr Madappan $50 000.00 but he did not pay the balance. Mr Madappan brought a claim in the Tribunal to recover the balance less expenses. Mr Thundiyil did not appear at the hearing. After hearing the evidence, the learned Adjudicator ordered that Mr Thundiyil pay Mr Madappan the full amount of his claim.
Mr Thundiyil applied to reopen the dispute. His application was refused. He now wants to appeal the learned Adjudicator’s decision on the grounds that he was not able to attend the hearing, so he was not able to present his evidence to the Tribunal.
Because this is an appeal from a minor civil dispute, Mr Thundiyil must seek leave to appeal. The Tribunal may grant leave if the dispute raises a question of general importance and the public would benefit from a decision on that question. It may also grant leave if Mr Thundiyil shows a reasonably arguable case of error and a reasonable prospect that he will obtain substantive relief if the error is corrected.
Mr Thundiyil’s application is really an application for leave to appeal the Tribunal’s decision to refuse to reopen the dispute. There is no appeal from a decision on a reopening application[1]. That is a complete answer to the appeal to the application for appeal however, because Mr Thundiyil addresses the facts of the dispute, I will make some further comment.
[1] Queensland Civil and Administrative Tribunal Act2009, s 139(5),
Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[2]
[2]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.[3] As the High Court said in Fox v Percy:
In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.[4]
[3] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[4] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
I have listened carefully to the transcript. The learned Adjudicator read all the material on file and considered Mr Thundiyil’s submissions. The learned Adjudicator noted that Mr Thundiyil acknowledged the debt[5]. He noted that Mr Madappan had deducted some expenses in operating the business which, he conceded, Mr Thundiyil should not have to pay. The learned Adjudicator considered the calculations carefully. There is nothing in the transcript that persuades me the learned Adjudicator should have taken a different view of the facts.
[5] Page 17 of Mr Madappan’s material.
There is no question of general importance that should be determined by the Appeals Tribunal; there is no reasonably arguable case that the learned Adjudicator was in error; there is no reasonable prospect of substantive relief on appeal; and there is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.
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