Wellcamp Properties Pty Ltd v Resnikoff - [2016] QDC 40

DISTRICT COURT OF QUEENSLAND

CITATION:

Wellcamp Properties Pty Ltd & Ors v Resnikoff [2016] QDC 40

PARTIES:

WELLCAMP PROPERTIES PTY LTD
ACN 010 591 732
(First Appellant)

and

LESTER ROY GRAY
(Second Appellant)

and

JOSEPHINE ANNA GRAY
(Third Appellant)

v

NINA RESNIKOFF
(Respondent)

FILE NO/S:

4198/15

DIVISION:

PROCEEDING:

Civil Appeal

ORIGINATING COURT:

Magistrates Court, Beenleigh

DELIVERED ON:

7 March 2016

DELIVERED AT:

Brisbane

HEARING DATE:

29 February 2016

JUDGE:

Searles DCJ

ORDER:

Leave to appeal denied.1.

Appellant to pay the Respondent’s costs of Appeal. 2.

CATCHWORDS:

APPEAL AND NEW TRIAL – Appeal to District Court from Magistrates Court – where leave to appeal is sought under section 45 of the Magistrates Court Act 1921 (Qld) – whether an important principle of law or justice is involved – whether the Respondent abandoned an allegation by way of cross-examination upon a different issue which was not the subject of pleadings – whether the finding of the Magistrate failed to accord principles of natural justice – whether the finding of the Magistrate offended the objects of pleadings – whether leave to appeal should be granted

Ramzy v Body Corporate for GC3CTS38396 & Anor [2012] QDC 397 – followed.

Crusader Marine Holdings Pty Ltd (in liq) v Ballantyne [2011] QSC 152 – cited.

COUNSEL:

Appellant – PG Jeffery

Respondent – W Tolton

SOLICITORS:

Appellant – Keller Nall and Brown

Respondent – Jeff Horsey Solicitors

Background

By Notice of Appeal filed 28 October 2015 the Appellants seek leave to appeal the decision of the Magistrates Court delivered extempore at the conclusion of a half day trial on 30 September 2015. The court ordered that judgment be entered for the Plaintiff against all three Defendants in the sum of $16,046.10 plus costs of $8,141.89.

The judgment represented outstanding rental payments due by the Appellants to the Respondent for the months of September 2012, February 2014 and March 2014 each of $5,348.70. The non-payments of the February and March 2014 payments were admitted on the pleading so the only issue in dispute related to the September 2012 rental.

Leave to Appeal

The Appellants appeal pursuant to s 45 of the Magistrates Court Act 1921 (Qld). Section 45(2)(a) requires leave where the amount in dispute, in this case $5,348.70, is not more than the minor civil dispute limit under the Queensland Civil and Administrative Tribunal Act 2009 (Qld). That figure is $25,000.

Principles Relating to the Grant of Leave to Appeal

Section 45(2) which I have referred to provides that a District Court or a judge thereof shall not grant leave to appeal unless the court or judge is satisfied that some important principle of law or justice is involved. In Ramzy v Body Corporate for GC3 CTS38396 & Anor,[1]Judge McGill reviewed the authorities dealing with the test to determine the existence of ‘some important principle of law or justice’. His Honour said:-[2]

“The leading authority on the application of this test is Wanstall v Burke [1925] St R Qd 295 a decision of the Full…

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.

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Details

Case: [2016] QDC 40
Decision Date: 7 March 2016

CaseChat Overview and Summary

The appeal by Wellcamp Properties Pty Ltd against the decision of the Magistrates Court was brought before the District Court, seeking leave to appeal under section 45 of the Magistrates Court Act 1921 (Qld). The original dispute between the parties revolved around an issue of whether the Respondent, Resnikoff, had abandoned an allegation during cross-examination that was unrelated to the pleadings. The appellant argued that this constituted a failure to adhere to the principles of natural justice and the objectives of the pleadings process.

The primary legal issues before the court were whether an important principle of law or justice was involved in the matter, whether the Respondent had indeed abandoned a non-pleaded allegation during the cross-examination, and if the Magistrate's findings were flawed by not adhering to the principles of natural justice or the objectives of pleadings. The court considered the implications of these issues in light of relevant case law, including Ramzy v Body Corporate for GC3CTS38396 & Anor and Crusader Marine Holdings Pty Ltd (in liq) v Ballantyne.

The District Court found that the appellant had not demonstrated that an important principle of law or justice was involved in the case, nor that the Magistrate's findings were erroneous in a manner that warranted an appeal. The court held that the cross-examination did not constitute a significant procedural misstep, and the findings of the Magistrate did not contravene principles of natural justice or the purposes of the pleadings process. Consequently, the appeal was dismissed, and the appellant was ordered to pay the Respondent's costs of the appeal.

Orders

Orders of the court

Leave to appeal denied.1.

Appellant to pay the Respondent’s costs of Appeal. 2.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Wellcamp Properties Pty Ltd & Ors v Resnikoff [2016] QDC 40
PARTIES:	WELLCAMP PROPERTIES PTY LTD ACN 010 591 732 (First Appellant) and LESTER ROY GRAY (Second Appellant) and JOSEPHINE ANNA GRAY (Third Appellant) v NINA RESNIKOFF (Respondent)
FILE NO/S:	4198/15
DIVISION:
PROCEEDING:	Civil Appeal
ORIGINATING COURT:	Magistrates Court, Beenleigh
DELIVERED ON:	7 March 2016
DELIVERED AT:	Brisbane
HEARING DATE:	29 February 2016
JUDGE:	Searles DCJ
ORDER:	Leave to appeal denied.1. Appellant to pay the Respondent’s costs of Appeal. 2.
CATCHWORDS:	APPEAL AND NEW TRIAL – Appeal to District Court from Magistrates Court – where leave to appeal is sought under section 45 of the Magistrates Court Act 1921 (Qld) – whether an important principle of law or justice is involved – whether the Respondent abandoned an allegation by way of cross-examination upon a different issue which was not the subject of pleadings – whether the finding of the Magistrate failed to accord principles of natural justice – whether the finding of the Magistrate offended the objects of pleadings – whether leave to appeal should be granted Ramzy v Body Corporate for GC3CTS38396 & Anor [2012] QDC 397 – followed. Crusader Marine Holdings Pty Ltd (in liq) v Ballantyne [2011] QSC 152 – cited.
COUNSEL:	Appellant – PG Jeffery Respondent – W Tolton
SOLICITORS:	Appellant – Keller Nall and Brown Respondent – Jeff Horsey Solicitors