Vivlios v Lucy Cole Prestige Properties Broadbeach Pty Ltd
[2014] QCATA 108
•13 May 2014
| CITATION: | Vivlios v Lucy Cole Prestige Properties Broadbeach Pty Ltd [2014] QCATA 108 |
| PARTIES: | Ligeri Vivlios (Applicant/Appellant) |
| v | |
| Lucy Cole Prestige Properties Broadbeach Pty Ltd atf Gaindrift Trust (Respondent) |
| APPLICATION NUMBER: | APL048 -14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 13 May 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where appointment of agent for sale – where form 22a signed – where seller alleged oral variation to contract – where tribunal found form 22a was the basis of the agreement – where seller submitted tribunal did not consider amended response – where seller submitted tribunal did not consider affidavit material filed - whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549 |
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 (Qld) (QCAT Act).
REASONS FOR DECISION
Ms Vivlios engaged Lucy Cole Prestige Properties Broadbeach Pty Ltd to sell her house. She signed a Form 22a, which included an authority to incur advertising costs. Lucy Cole sent an invoice for the advertising costs but Ms Vivlios did not pay. Lucy Cole filed an application in the tribunal. The tribunal ordered Ms Vivlios pay Lucy Cole $22,129.75.
Ms Vivlios wants to appeal that decision. She says the learned Member did not consider or determine matters of mixed fact and law raised in her amended response. She says the learned Member did not refer to, or consider, the contents of an affidavit from Jim Vivlios sworn 3 September 2013, as she ought to have done.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as His Honour then was) in Pickering v McArthur[1]:
There are numerous authorities, in varying language but with unvarying emphasis, that 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.
[1][2005] QCA 294 at [3].
The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[2] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[3]
[2]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[3]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
Ms Vivlios’ amended response, her affidavit and Mr Vivlios’ affidavit assert that Lucy Cole’s appointment was partly written and partly oral. To the extent that the agreement was oral, Ms Vivlios says that the parties agreed that advertising costs would be paid from the proceeds of sale and that, if there was no sale, no costs were payable.
The transcript shows that the learned Member did read the Vivlios’ affidavits[4]. She refers directly to Mr Vivlios’ affidavit[5]. The transcript also shows that the learned Member clearly understood the nature of Ms Vivlios’ argument. She acknowledged that Ms Vivlios claimed there was an oral agreement[6]. The learned Member heard submissions from Ms Vivlios in support of her position[7]. The learned Member asked Ms Vivlios why she signed the Form 22a in terms that were different from the alleged oral agreement[8].
[4]Transcript page 1-5, line 33; page 1-6, lines 15, 32; page 1-9, line 8.
[5]Transcript page 1-9, line 21.
[6]Transcript page 1-9, lines 20-22.
[7]Transcript page 1-10, lines 8-30, 40-47.
[8]Transcript page 1-11, lines 1-7.
It is not correct to say that the learned Member did not consider or determine the issues raised in the amended response. It is also not correct to say that the learned Member did not consider the evidence contained in the Vivlios’ affidavits. The learned Member did consider that material and she was not persuaded that there was an oral contract that was different from the written contract. The evidence can support the learned Member’s findings and here is nothing in the transcript to persuade me that the learned Member should have taken a different view of the facts.
There is no reasonably arguable case that the learned Member was in error. Leave to appeal should be refused.
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