Yang & Anor v Wellcamp Properties Pty Ltd - [2018] QCATA 161

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Yang & Anor v Wellcamp Properties Pty Ltd [2018] QCATA 161

PARTIES:

LI YANG
and
EVERTOP DEVELOPMENTS PTY LTD
(applicants)

v

WELLCAMP PROPERTIES PTY LTD T/AS PRIMELAND REAL ESTATE

(respondent)

APPLICATION NO/S:

APL399-17

ORIGINATING APPLICATION NO/S:

MCDO1060-17

MATTER TYPE:

Appeals

DELIVERED ON:

30 October 2018

HEARING DATE:

7 September 2018

HEARD AT:

Brisbane

DECISION OF:

Member Roney QC

ORDERS:

1.   The Adjudicator erred in dismissing the application on the grounds of want of jurisdiction.

2.   The matter is remitted to the Tribunal for hearing.

3.   Within 30 days of delivery of these Reasons, the Applicants obtain by way of search or otherwise, copies from the file in the Supreme Court Registry in proceeding 7590 of 2008, and provide copies to the Respondent and file in this Tribunal the following documents:

(a)   The Claim and Statement of Claim filed 8 August 2008;

(b)   The Notice of Intention to Defend filed 7 October 2008;

(c)    The Reply filed 30 October 2009;

(d)   The Defence and Counterclaim filed 25 November 2009;

(e)    The affidavit of Mr Zhen Lin filed 20 July 2010 and the affidavit of S Riches filed 19 August 2010; and

(f)    The Order of the Court on 6 September 2010.

4.   Within 30 days of delivery of these Reasons, the Applicants file in this Tribunal and serve on the Respondent any documents directly relevant to and/or evidencing:

(a)   Communications between their solicitors and the Respondent in and after June 2008 relating to the purchase of the property at 347 Ebenezer Road, Ebenzer; and

(b)   Any communications between themselves and their solicitors other than any document which is the subject of a valid claim for legal professional privilege in and after June 2008 relating to the purchase of the property at 347 Ebenezer Road, Ebenzer.

5.   Within 30 days of delivery of these Reasons, the Respondent file in this Tribunal and serve on the Applicants:

(a)   Any communications between itself and the Applicants’ solicitors other than any document which is the subject of a valid claim for legal professional privilege in and after June 2008;

(b)   Any communication in or after June 2008 between the Respondent and the vendors of the property at 347 Ebenezer Road, Ebenzer;

(c)    Any document directly relevant to the circumstances by which it determined to release their deposit on or about 11 September 2012;

(d)   Any document directly relevant to the identity of the person to whom the deposit was remitted; and

(e)    Any document directly relevant to and/or evidencing the identity of the person or persons to whom the proceeds of the disbursement of the dispute went or were drawn.

6.   I make no order as to costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FROM INTERLOCUTORY DECISIONS – LEAVE TO APPEAL – minor civil dispute – where the Applicants claimed the Respondent agent improperly dealt with their moneys held as stakeholder under a land sale contract…

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: [2018] QCATA 161
Decision Date: 30 October 2018

CaseChat Overview and Summary

The appeal was brought by Yang and another individual against Wellcamp Properties Pty Ltd. The Applicants sought a refund of their deposit under a land sale contract, which they alleged was improperly handled by the Respondent's agent. The original claim was dismissed by the Tribunal, which found that the matter was not a minor civil dispute, and therefore, it lacked jurisdiction. The Applicants sought leave to appeal this decision, arguing that their claim was for a debt or liquidated demand, and thus, the Tribunal had jurisdiction to hear it.

The central issue before the court was whether the Applicants' claim was for a debt or liquidated demand, which would have fallen within the jurisdiction of the Tribunal, or whether it was a claim for damages, which would not. The court also had to consider whether leave to appeal should be granted, given the nature of the dispute and the Applicants' arguments.

In determining the appeal, the court found that the Adjudicator erred in dismissing the application on the grounds of want of jurisdiction. The Applicants' claim was not for damages but rather for a refund of their deposit, which the court deemed to be a debt or liquidated demand. Therefore, the Tribunal had jurisdiction to hear the matter. The court also found that leave to appeal should be granted because the Applicants had made out a prima facie case that the Adjudicator had erred in law. Consequently, the matter was remitted to the Tribunal for hearing.

The orders of the court included the annulment of the Tribunal's decision on the grounds of want of jurisdiction, the remission of the matter to the Tribunal for hearing, and various orders for the production of documents relevant to the dispute. These documents included communications between the parties and their solicitors, affidavits, and orders from previous proceedings. The court made no order as to costs.

Orders

Orders of the court

1. The Adjudicator erred in dismissing the application on the grounds of want of jurisdiction.

2. The matter is remitted to the Tribunal for hearing.

3. Within 30 days of delivery of these Reasons, the Applicants obtain by way of search or otherwise, copies from the file in the Supreme Court Registry in proceeding 7590 of 2008, and provide copies to the Respondent and file in this Tribunal the following documents:

(a) The Claim and Statement of Claim filed 8 August 2008;

(b) The Notice of Intention to Defend filed 7 October 2008;

(d) The Defence and Counterclaim filed 25 November 2009;

(e) The affidavit of Mr Zhen Lin filed 20 July 2010 and the affidavit of S Riches filed 19 August 2010; and

(f) The Order of the Court on 6 September 2010.

4. Within 30 days of delivery of these Reasons, the Applicants file in this Tribunal and serve on the Respondent any documents directly relevant to and/or evidencing:

(a) Communications between their solicitors and the Respondent in and after June 2008 relating to the purchase of the property at 347 Ebenezer Road, Ebenzer; and

(b) Any communications between themselves and their solicitors other than any document which is the subject of a valid claim for legal professional privilege in and after June 2008 relating to the purchase of the property at 347 Ebenezer Road, Ebenzer.

5. Within 30 days of delivery of these Reasons, the Respondent file in this Tribunal and serve on the Applicants:

(a) Any communications between itself and the Applicants’ solicitors other than any document which is the subject of a valid claim for legal professional privilege in and after June 2008;

(b) Any communication in or after June 2008 between the Respondent and the vendors of the property at 347 Ebenezer Road, Ebenzer;

(c) Any document directly relevant to the circumstances by which it determined to release their deposit on or about 11 September 2012;

(d) Any document directly relevant to the identity of the person to whom the deposit was remitted; and

(e) Any document directly relevant to and/or evidencing the identity of the person or persons to whom the proceeds of the disbursement of the dispute went or were drawn.

6. I make no order as to costs.

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:	Yang & Anor v Wellcamp Properties Pty Ltd [2018] QCATA 161
PARTIES:	LI YANG and EVERTOP DEVELOPMENTS PTY LTD (applicants)
v
WELLCAMP PROPERTIES PTY LTD T/AS PRIMELAND REAL ESTATE (respondent)
APPLICATION NO/S:	APL399-17
ORIGINATING APPLICATION NO/S:	MCDO1060-17
MATTER TYPE:	Appeals
DELIVERED ON:	30 October 2018
HEARING DATE:	7 September 2018
HEARD AT:	Brisbane
DECISION OF:	Member Roney QC
ORDERS:	1. The Adjudicator erred in dismissing the application on the grounds of want of jurisdiction. 2. The matter is remitted to the Tribunal for hearing. 3. Within 30 days of delivery of these Reasons, the Applicants obtain by way of search or otherwise, copies from the file in the Supreme Court Registry in proceeding 7590 of 2008, and provide copies to the Respondent and file in this Tribunal the following documents: (a) The Claim and Statement of Claim filed 8 August 2008; (b) The Notice of Intention to Defend filed 7 October 2008; (c) The Reply filed 30 October 2009; (d) The Defence and Counterclaim filed 25 November 2009; (e) The affidavit of Mr Zhen Lin filed 20 July 2010 and the affidavit of S Riches filed 19 August 2010; and (f) The Order of the Court on 6 September 2010. 4. Within 30 days of delivery of these Reasons, the Applicants file in this Tribunal and serve on the Respondent any documents directly relevant to and/or evidencing: (a) Communications between their solicitors and the Respondent in and after June 2008 relating to the purchase of the property at 347 Ebenezer Road, Ebenzer; and (b) Any communications between themselves and their solicitors other than any document which is the subject of a valid claim for legal professional privilege in and after June 2008 relating to the purchase of the property at 347 Ebenezer Road, Ebenzer. 5. Within 30 days of delivery of these Reasons, the Respondent file in this Tribunal and serve on the Applicants: (a) Any communications between itself and the Applicants’ solicitors other than any document which is the subject of a valid claim for legal professional privilege in and after June 2008; (b) Any communication in or after June 2008 between the Respondent and the vendors of the property at 347 Ebenezer Road, Ebenzer; (c) Any document directly relevant to the circumstances by which it determined to release their deposit on or about 11 September 2012; (d) Any document directly relevant to the identity of the person to whom the deposit was remitted; and (e) Any document directly relevant to and/or evidencing the identity of the person or persons to whom the proceeds of the disbursement of the dispute went or were drawn. 6. I make no order as to costs.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FROM INTERLOCUTORY DECISIONS – LEAVE TO APPEAL – minor civil dispute – where the Applicants claimed the Respondent agent improperly dealt with their moneys held as stakeholder under a land sale contract…