Vivlios v Votino - [2010] QCATA 42

CITATION:

Vivlios v Votino [2010] QCATA 42

PARTIES:	Vasilios VIVLIOS (Applicant/Appellant)
v
Claudia VOTINO (Respondent)

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
Chambers v Jobling (1986) 7 NSWLR 1, cited
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, applied
Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634, cited
McIver Bulk Liquid Haulage Pty Ltd v Freuhauf Australia Pty Ltd [1989] 2 Qd R 577, applied
Quyd Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41, 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Vivlios v Votino

Details

AGLC: Vivlios v Votino [2010] QCATA 42
Case: [2010] QCATA 42
Decision Date: 31 August 2010

CaseChat Overview and Summary

The case of Vivlios v Votino involved a dispute between the appellant, Vivlios, and the respondent, Votino. The dispute arose from a verbal agreement where Votino, the respondent, intended to purchase one half share of an existing business from Vivlios, the appellant, who was acting on behalf of his daughter. The agreement was contingent upon Votino obtaining and completing the necessary paperwork. However, Votino did not complete the paperwork due to a falling out with the appellant's daughter, leading to the termination of the agreement. The appellant refused to refund Votino's deposit and monthly advance in rent, which resulted in Votino lodging an application for dispute resolution. The adjudicator made adverse findings of credit against the appellant. The appellant challenged the findings, arguing they were not supported by the evidence and were unreasonable.

The legal issues before the court included whether the findings of credit made by the adjudicator were supported by the evidence and whether those findings were open and reasonable. The court had to assess the sufficiency and reliability of the evidence presented and evaluate whether the adjudicator correctly interpreted and applied the evidence in reaching the findings of credit. Additionally, the court needed to determine if the findings were within the bounds of reasonableness and whether any errors in the findings were significant enough to warrant a different outcome.

In examining the evidence, the court found that there were significant inconsistencies and gaps in Votino's evidence. The adjudicator had relied on Votino's testimony without substantial corroboration, leading to an unjust outcome. The court concluded that the findings of credit were not supported by the evidence and were unreasonable. The court further found that the adjudicator had failed to properly consider the appellant's evidence and had made errors in the interpretation of the facts. As a result, the findings of credit were set aside and the matter was remitted for reassessment by a new adjudicator. The court ordered that the appellant's costs of the appeal be paid by the respondent.

Orders