Turner v Ingram

[2017] QCATA 90

CITATION:

Turner v Ingram [2017] QCATA 90

PARTIES:

Keith Turner
(Appellant)
v
Sam Adam Ingram
(Respondent)

APPLICATION NUMBER:

APL125-17

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM
Member Bridgman

DELIVERED ON:

14 August 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1.   Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – where parties entered into contract – where contract required payment by instalment – where instalment payments not met – where Tribunal found that contract was for transfer of business name and assets on full payment of consideration –  whether grounds for leave to appeal

APPEAL – LEAVE TO APPEAL – INTEREFERENCE WITH FINDINGS OF FACT – PROOF AND EVIDENCE – OTHER MATTERS – where Tribunal relied on a party’s evidence in determining construction of a contract of sale – where Tribunal made finding of fact based on evidence available before it whether evidence capable of supporting the findings of fact – whether grounds for leave to appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i)

Dearman v Dearman (1908) 7 CLR 549; [1908] HCA 84
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Pickering v McArthur [2005] QCA 294

APPEARANCES:

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

REASONS FOR DECISION

Senior Member Stilgoe

1. In this appeal, the Appeal Tribunal comprised Member Bridgman and me. I have had the benefit of reading Member Bridgman’s reasons in draft. I agree with his reasons, his conclusions and the order he proposes.

Member Bridgman

1. On Christmas Eve in 2015 Sam Ingram sold his two-thirds share of a pizza business in Victoria Point to the owner of the other one-third, Keith Turner and his partner and fiancé Sonia McCarthy. The terms of the contract were that the business, business name and all the assets would be transferred to Mr Turner in consideration of $30,000 payable in three instalments: first,  $20,000 on signing the contract; second, $5,000 on 1 June 2016; and third $5,000 on or before 1 December 2016. The contract stated, after detailing the amounts and dates for the second and third instalments: “for ownership of the coffee machine and one pizza oven”.

2. A “list of assets” was annexed to the contract.

3. The second instalment was not paid on time. Mr Ingram gave an extension of eight weeks, then another four weeks. Payment did not eventuate.

4. Mr Ingram sought to recover the $10,000 plus costs in the Queensland Civil and Administrative Tribunal. On 23 March 2017, the Tribunal gave on order in Mr Ingram’s favour for $10,000 plus $112.50 for filing fees.

5. Mr Turner appeals that decision, seeking:

   a)that Mr Ingram’s application be dismissed; or alternatively

   b)the Tribunal’s decision be set aside and instead an order made that Mr Ingram pay Mr Turner $5,600 plus filing fees of $112.50.

6. Because this is an appeal from the Tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]

   [1]QCAT Act, s 142(3)(a(i).

   [2]Pickering v McArthur [2005] QCA 294, [3].

7. The grounds of appeal are that the Tribunal:

   a)failed to consider that certain assets were not owned by the business but leased, causing Mr Turner to incur $4,000 expenses to replace those assets;

   b)failed to reduce Mr Ingram’s claim to account for costs and losses arising from failure to transfer the business name on payment of the first instalment, causing losses as Mr Turner could not apply for a liquor license.

8. The appeal is also predicated on Mr Taylor’s interpretation of the contract that the intention of the parties was that the first instalment would be for transfer of the business name and most of the equipment, and the other instalments were payment for a coffee machine and one of two pizza ovens.

9. The Tribunal found that the contract, properly constructed, was for transfer of the business name and all the assets on payment of the total consideration, namely the full $30,000. Accordingly, the Tribunal held that there was a debt of $10,000 owing to Mr Ingram.

10. The Tribunal heard evidence from the parties, including oral evidence as to the contractual negotiations and post-contractual dealings. The Tribunal below preferred the evidence of Mr Ingram to that of Mr Turner, and gave sound reasons for the preference.

11. The conclusion reached about the construction of the contract was open to the Tribunal and supported by the evidence before it.

12. The appeal notice effectively seeks to re-litigate the issues tested on evidence before the Tribunal.

13. 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.[3] Such is the case here.

    [3]Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549, 561; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 125-126.

14. There is no reasonable argument that the decision was affected by error, and no basis on which to claim substantial injustice.

15. Leave to appeal is refused.