Williams v Kaech - [2008] QCA 176

SUPREME COURT OF QUEENSLAND

CITATION:

Williams v Kaech [2008] QCA 176

PARTIES:

CLIVE WILLIAMS
(applicant/applicant)
v
FRANZ KAECH and HANNI KAECH
(respondents/respondents)

FILE NO/S:

Appeal No 136 of 2008
DC No 3397 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

27 June 2008

DELIVERED AT:

Brisbane

HEARING DATE:

15 May 2008

JUDGES:

Holmes and Fraser JJA and Mackenzie AJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Application for leave to appeal refused

2. Applicant to pay the respondents’ costs of the application to be assessed on the standard basis

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where the applicant sought leave to appeal to the District Court against an order of the Commercial and Consumer Tribunal – where the District Court judge refused to grant leave to appeal against that decision – where the District Court judge held that the applicant could not demonstrate an error of law in the tribunal’s decision that warranted a grant of leave – where the applicant sought leave to appeal against the decision of the District Court pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) – where the applicant contended that the tribunal had erred in law in reaching its findings of fact – whether the applicant could demonstrate the tribunal had erred in law – whether the applicant should be granted leave to appeal

Commercial and Consumer Tribunal Act 2003 (Qld), s 100
District Court of Queensland Act 1967 (Qld), s 118(3)
Property Agents and Motor Dealers Act 2000 (Qld), s 133,
s 469, s 470, s 488, s 490

Arnold Electrical & Data Installations P/L v Logan Area Group Apprenticeship/Traineeship Scheme Ltd [2008] QCA 100, cited
Deatons Pty Ltd v Flew (1949) 79 CLR 370; [1949] HCA 60, cited
Lloyd v Grace, Smith & Co [1912] AC 716, cited
New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4, cited

COUNSEL:

The applicant appeared on his own behalf
M P Amerena on behalf of the respondents

SOLICITORS:

The applicant appeared on his own behalf
MacGillivrays acting as Town Agent for Gayler Cleland for the respondents

HOLMES JA: I agree with the reasons of Fraser JA and the orders he proposes.

FRASER JA: The applicant, Mr Williams, applies pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) for leave to appeal against an order in the District Court refusing him leave to appeal against a decision of the Commercial and Consumer Tribunal made on 26 October 2007.

The proceedings in the Tribunal

The tribunal found that Thymania Pty Ltd held a real estate "corporate licence" under the Property Agents and Motor Dealers Act 2000 (Qld) which entitled it to carry on…

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 Williams v Kaech

Details

AGLC: Williams v Kaech [2008] QCA 176
Case: [2008] QCA 176
Decision Date: 27 June 2008

CaseChat Overview and Summary

In Williams v Kaech, the applicant, Williams, sought leave to appeal against an order of the Commercial and Consumer Tribunal, which had been upheld by the District Court. The applicant, Williams, had engaged Kaech, a real estate agent, to sell his property. The dispute arose from the terms and execution of the agreement between Williams and Kaech. The Tribunal found in favour of Kaech, and Williams sought to appeal this decision to the District Court. However, the District Court judge refused to grant leave to appeal, finding that Williams could not demonstrate an error of law in the Tribunal’s decision that warranted an appeal.

The primary legal issue before the court was whether Williams could demonstrate that the Tribunal had erred in law in reaching its findings of fact. Williams argued that the Tribunal had misapplied the law in several respects, leading to an unjust outcome. The court needed to determine whether the alleged errors of law were sufficient to warrant leave to appeal. This involved examining whether the Tribunal's decision was so flawed that it could not be left to stand, given the potential for injustice.

The court considered the grounds of appeal and concluded that Williams had not demonstrated any errors of law that warranted a grant of leave. The court found that the Tribunal had carefully considered the evidence and applied the law correctly in reaching its decision. The District Court judge held that the applicant could not establish that the Tribunal’s findings were so erroneous as to warrant an appeal. Consequently, the application for leave to appeal was refused, and Williams was ordered to pay the respondents' costs of the application on the standard basis.

Orders

Orders of the court

1. Application for leave to appeal refused

2. Applicant to pay the respondents’ costs of the application to be assessed on the standard basis

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Williams v Kaech [2008] QCA 176
PARTIES:	CLIVE WILLIAMS (applicant/applicant) v FRANZ KAECH and HANNI KAECH (respondents/respondents)
FILE NO/S:	Appeal No 136 of 2008 DC No 3397 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	27 June 2008
DELIVERED AT:	Brisbane
HEARING DATE:	15 May 2008
JUDGES:	Holmes and Fraser JJA and Mackenzie AJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal refused 2. Applicant to pay the respondents’ costs of the application to be assessed on the standard basis
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where the applicant sought leave to appeal to the District Court against an order of the Commercial and Consumer Tribunal – where the District Court judge refused to grant leave to appeal against that decision – where the District Court judge held that the applicant could not demonstrate an error of law in the tribunal’s decision that warranted a grant of leave – where the applicant sought leave to appeal against the decision of the District Court pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) – where the applicant contended that the tribunal had erred in law in reaching its findings of fact – whether the applicant could demonstrate the tribunal had erred in law – whether the applicant should be granted leave to appeal Commercial and Consumer Tribunal Act 2003 (Qld), s 100 District Court of Queensland Act 1967 (Qld), s 118(3) Property Agents and Motor Dealers Act 2000 (Qld), s 133, s 469, s 470, s 488, s 490 Arnold Electrical & Data Installations P/L v Logan Area Group Apprenticeship/Traineeship Scheme Ltd [2008] QCA 100, cited Deatons Pty Ltd v Flew (1949) 79 CLR 370; [1949] HCA 60, cited Lloyd v Grace, Smith & Co [1912] AC 716, cited New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4, cited
COUNSEL:	The applicant appeared on his own behalf M P Amerena on behalf of the respondents
SOLICITORS:	The applicant appeared on his own behalf MacGillivrays acting as Town Agent for Gayler Cleland for the respondents