Vivlios v Votino
[2010] QCATA 42
•31 August 2010
| CITATION: | Vivlios v Votino [2010] QCATA 42 |
| PARTIES: | Vasilios VIVLIOS (Applicant/Appellant) |
| v | |
| Claudia VOTINO |
APPLICATION NUMBER: APL044-10
| MATTER TYPE: | Appeal |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Justice Alan Wilson, President |
DELIVERED ON: 31 August 2010
DELIVERED AT: Brisbane
ORDERS MADE: Application for leave to appeal refused
| CATCHWORDS : | MINOR CIVIL DISPUTE – CONTRACTUAL DISPUTE – FINDINGS OF CREDIT – where appellant’s daughter and the respondent entered into a verbal agreement with the appellant for the purchase of one half share of an existing business from the appellant – where finalisation of agreement conditioned on the respondent obtaining and completing the necessary paperwork – where respondent did not obtain necessary paperwork due to falling out with appellant’s daughter – where appellant refused to refund respondent’s deposit and monthly advance in rent – where adjudicator made adverse findings of credit against the appellant – whether findings of credit supported by evidence – whether findings open and reasonable Queensland Civil and Administrative Tribunal Act 2009, s 142(3) Cachia v Grech [2009] NSW CA 232, cited |
REASONS FOR DECISION
Ms Votino brought proceedings in QCAT’s minor civil disputes jurisdiction about matters concerning the sale and purchase of a hairdressing business at Bundall. She claimed that Mr Vivlios had offered to sell her a one half share in the business for $15000.00, and that she had paid a deposit of $5000.00 and a share of the first months rent of $1400.00, but Mr Vivlios had failed to complete the sale and therefore these sums should be refunded to her.
The matter was heard by a QCAT adjudicator at Southport on 3 March 2010. At the end of a lengthy hearing involving evidence and submissions filling over 54 pages of transcript the learned adjudicator gave extensive reasons for her decision and ordered that Mr Vivlios pay Ms Votino $6400.00 plus her filing fee of $80.00 within fourteen days.
Mr Vivlios seeks leave to appeal that decision. Leave is necessary: Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(i). Ordinarily, leave will only be granted if there is a reasonably arguable case of error in the primary decision, and a reasonable prospect of obtaining substantive release[1]; or, it is necessary to correct a substantial injustice to the applicant and there is a question of general importance upon which further argument, and a decision of the appeal court or tribunal, would be to the public advantage[2].
[1] Quyd Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; Cachia v Grech [2009] NSW CA 232
[2] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, at 389; McIver Bulk Liquid Haulage Pty Ltd v Freuhauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580
This Appeal Tribunal directed that both the application for leave (and the appeal, if leave is granted) should be determined on the papers, and directed that the parties file and exchange written submissions, which they have done.
Mr Vivlios, the applicant, contends that he entered into an oral contract with Ms Votino to sell her 50 percent of a hairdressing business for $15,000.00; that she paid a deposit of $5000.00, with the balance due and payable when she sold her house in Adelaide; and that, upon payment of the full amount of $15,000.00 the applicant would grant her, and her new business partner Ms Marie Malandris (who is Mr Vivlios’ daughter), a lease for the premises in which the business was conducted. He also alleges, however, that Ms Votino never paid the balance of the purchase price and wrongly purported to terminate the contract and demand her deposit back in circumstances where all the contractual fault fell upon her. He asserts that Ms Votino owes him $10,000.00, effectively for damages which he suffered ‘…at the time of the respondent walked out of the business and to the time that he was able to resell and/or relet the premises’.
Ms Votino’s contrary submissions are that Mr Vivlios approached her about buying a one half share in the business and she agreed and paid him $6400.00 in cash - $5000.00 for a deposit on the price of $15,000.00 (for a one half share in the business) and $1400.00 for rent in advance. She began trading on 1 August but on 3 September was told, she alleges, by Ms Malandris that she was not going to receive the necessary documents to complete the purchase. On 5 September 2009 she asked for a refund of the deposit and rent and, through a lawyer, terminated the agreement to buy a share in the business.
The learned adjudicator’s careful and comprehensive reasons fully address each of the parties competing contentions. In particular, she made adverse findings of credit against Mr Vivlios including, in particular, findings that certain business records had been tampered with. She found, as the parties agreed, that there was a verbal agreement under which Ms Votino would purchase a half share in the business for $15,000.00, and that she did pay a deposit of $5000.00 and a contribution to the rent of $1400.00. There is a specific finding that, as a term of this agreement, Ms Votino was to pay the balance of $10,000.00 ‘…once she had the relevant paperwork in place’.
Another relevant finding follows – that Ms Votino and Ms Malandris, who owned the other half share of the business, had a falling out. The transaction under which each owned a half share in the business obviously, then, became unworkable.
There are additional findings, based on the credit of the witnesses, adverse to Mr Vivlios’ case: in particular, the learned adjudicator concluded that he had no intention of selling the business or finalising the paperwork with Ms Votino and pointed to the fact that he had entered into another contract with a third party to sell the business for $30,000.00 and that was ‘…likely to be the reason why a lease and contract for Ms Votino were not provided’.
The case largely turned upon issues of credit. The learned adjudicator’s reasons could not more fully, or helpfully, expose her process of reasoning. She made adverse findings of credit against Mr Vivlios and Ms Malandris but carefully explained why, and how, she came to them. On the basis of these findings she concluded that the sale to Ms Votino did not proceed because the effective proposed partnership between Ms Votino and Ms Malandris quickly became unworkable, and also because Mr Vivlios had found another purchaser for a better price. Once either of those findings was made the conclusion that Ms Votino was, in effect, the innocent party is entirely unsurprising. The transcript shows that these findings on matters of credit, and findings supportive of these inferences, were plainly open and available.
The learned adjudicator’s findings about credit are supported by the evidence. She provided substantial reasons for her findings, and her ultimate decision. She also had the advantage of evaluating the witnesses’ credibility by seeing them give evidence and, also, of what has been called the ‘feeling’ of the case which this appellate Tribunal, limited to the transcript, cannot fully share[3].
[3] Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 at 637; and, see Chambers v Jobling (1986) 7 NSWLR 1 at 25
Even without those advantages, nothing in the transcript of evidence or the reasons suggests any of the findings were not reasonably open or that any of the inferences the learned adjudicator drew from them were not reasonably and fairly available. In short, Mr Vivlios cannot point to any error in the primary decision and, certainly, nothing that would suggest a reasonably arguable case of error. Nor does anything in the transcript or the reasons, or his submissions, suggest that is necessary to correct any substantial injustice or, for the record, that he has a reasonable prospect of obtaining substantive relief if leave to appeal is granted. In short, no sign of any apparent injustice appears.
There is, then, nothing in the case to suggest that the learned adjudicator’s findings, and her ultimate decision, were anything other than fairly and reasonably open – and, as it is appropriate to remark, compellingly so.
For these reasons the application for leave to appeal is refused.
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