Vun v Tom Hynes t/as Quality Suites Ivory Palms
[2011] QCATA 118
•24 May 2011
| CITATION: | Vun v Tom Hynes t/as Quality Suites Ivory Palms [2011] QCATA 118 |
| PARTIES: | Henry K Vun (Applicant/Appellant) |
| v | |
| Tom Hynes t/as Quality Suites Ivory Palms (Respondent) |
| APPLICATION NUMBER: | APL070-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 24 May 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Leave to appeal is refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where Mr Vun owns an apartment in the Ivory Palms resort at Noosaville – where Mr Vun alleged that the managing/letting agents at the resort had overcharged him or had rendered charges which he had not lawfully authorised – where a Magistrate found that Mr Vun had been notified of periodic increases in charges, which were ‘warranted’ – where Mr Vun seeks leave to appeal that decision – whether leave to appeal should be granted Property Agents and Motor Dealers Act 2000 Fox v Percy (2003) (2003) 214 CLR 118, cited |
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 (QCAT Act).
REASONS FOR DECISION
Mr Vun owns apartment 94 in the Ivory Palms resort at Noosaville. He brought proceedings in QCAT’s Minor Civil Disputes jurisdiction alleging that the managing/letting agents at the resort had overcharged him just under $2,500 between 2007 and 2010 – or, had rendered charges which he had not lawfully authorised.
The matter was heard and determined by a Magistrate, sitting as a QCAT ordinary Member, at Noosa on 2 July 2010. The learned Magistrate heard evidence and submissions from Mr Vun and from a Mr Hynes, representing the agent and, at the conclusion of the hearing, gave oral reasons for wholly rejecting Mr Vun’s claim.
In short, the learned Magistrate was satisfied from Mr Hynes’ evidence that Mr Vun had been notified of periodic increases in charges, which were ‘warranted’. He also rejected Mr Vun’s claims that he had been charged for some services which had not, in fact, been rendered.
Mr Vun now seeks leave to appeal that decision. His original application for leave to appeal had two attachments containing eight pages of typewritten submissions. When this Appeal Tribunal directed that the matter be heard and determined on the papers, with written submissions from each party, he submitted another five closely typewritten pages.
The evidence included a form under the Property Agents and Motor Dealers Act 2000, Form 20a under which Mr Vun appointed Mr Hynes and his wife to be the letting and property management agent. It contained, in cl 6.1, a reference to a current schedule of the agent’s charges and provided, in cl 11, that the charges in the schedule ‘…may be reasonably increased by the agent by giving written notice of such increase to the client’.
The transcript shows that in the course of the evidence Mr Hynes said, on oath, that the charges did go up from time to time but he informed all owners by email and newsletter. Mr Vun denies this, but it is apparent from the learned Magistrate’s Reasons that he found Mr Hynes the more credible witness, and preferred his version. He does not say how or why he came to that conclusion, but the transcript showed that it was reasonably open.
In QCAT’s Minor Civil Disputes jurisdiction the pressure upon Magistrates and Adjudicators is such that their prompt oral decisions, usually given at the conclusion of the many hearings they conduct, should not be exposed to criticism which fails to acknowledge the circumstances in which those reasons are given or the pressure upon them.
The nature of the dispute before the learned Magistrate required him to make a decision about this credit issue, and he did so. Nothing in the transcript, or Mr Vun’s submissions, establishes any basis for interfering with this finding of fact,[1] or suggests it involves any apparent error.
[1] Fox v Percy (2003) 214 CLR 118 at 125-127.
As to Mr Vun’s other complaints – about ‘phantom’ charges or other charges not properly incurred or payable, the learned Magistrate again gave adequate reasons for his conclusions.
[10] 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?
[11] Nothing in Mr Vun’s extensive submissions suggests there is any apparent error in the learned Magistrate’s conduct of the hearing, or the conclusions he reached. Certainly, there is nothing to suggest any injustice in the decision. Otherwise, it may also be observed that the case does not involve any apparent question of general importance, requiring adjudication by this Appeal Tribunal.
[12] The application for leave to appeal is refused.
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