Todd v Downing

CITATION: Todd v Downing [2011] QCATA 074

PARTIES:	Andrew Todd (Applicant/Appellant)
v
Christopher Downing (Respondent)

APPLICATION NUMBER:   APL291-10

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON: 29 March 2011

DELIVERED AT: Brisbane

ORDERS MADE: Application for leave to appeal refused.

CATCHWORDS : 

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where the respondent purchased an outboard motor from the applicant/appellant – where the respondent alleged that the oil injection system had been disconnected and the motor was damaged – where the applicant/appellant did not appear at the hearing at first instance – where the Magistrate at first instance ordered that the applicant/appellant pay damages – where the applicant/appellant now seeks leave to appeal that decision – where the application is effectively an attempt to overturn a decision refusing to reopen the case – whether leave to appeal should be granted

Queensland Civil and Administrative Tribunal Act 2009, ss 137, 139, 142

APPEARANCES and REPRESENTATION (if any):

By order of the Appeal Tribunal the matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Act 2009 (QCAT Act).

REASONS FOR DECISION

1. In March 2010 Mr Downing purchased a boat and outboard motor, and trailer, from Mr Todd.  Mr Downing alleges that at the time of the purchase Mr Todd represented to him that the engine had an oil injection system, which was functioning.  Later, Mr Downing alleges, he discovered the oil injection system had been disconnected, as a result of which the motor was damaged during his use of it.  He brought proceedings in QCAT’s Minor Civil Disputes jurisdiction for the cost of a new motor.

2. The matter was heard by a Magistrate sitting as a QCAT Ordinary Member on 19 August 2010.  Mr Todd did not attend the hearing.  The learned Magistrate, after hearing from Mr Downing and reviewing his evidence, assessed his damages at $5,450.00 and ordered that Mr Todd pay him that sum, plus filing fees of $90.00. 

3. Mr Todd has sought leave to appeal the decision. Leave is necessary: QCAT Act, s 142(3)(a)(i).

1. Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief.  Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?

1. Mr Todd’s submissions in support of his application for leave to appeal raise two principal grounds: first, that he did not receive notice of the court hearing and was wrongly denied the opportunity to present his case to the Magistrate; and, secondly, that he has evidence rebutting Mr Downing’s claims which mean he could have successfully resisted the judgment against him.

2. The first point has…