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King Developments Pty Ltd v Mayne[2015] QCATA 29

King Developments Pty Ltd v Mayne[2015] QCATA 29

CITATION:

King Developments Pty Ltd v Mayne [2015] QCATA 29

PARTIES:

King Developments Pty Ltd

(Applicant/Appellant)

v

Alan John Colburn Mayne

(Respondent)

APPLICATION NUMBER:

APL533-14

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane 

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

24 February 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Appeal allowed.
  2. King Developments Pty Ltd shall file and serve any additional material on which it wishes to rely, including but not limited to the material filed in APL524 -14 and any material evidencing quantum, by 4:00pm on 24 March 2015.
  3. Mr Mayne may file and serve any material in reply by 4:00pm on 21 April 2015.
  4. The application OCL093-13 will be listed for hearing for one day on a date to be advised.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL –PROPERTY AGENTS AND MOTOR DEALERS – MOTOR DEALER – CLAIM ON THE FUND – where purchase of registrable write off – where vehicle not registered – where tribunal refused claim on the fund – whether grounds for leave to appeal

APPEAL – PROCEDURE – where no request for oral hearing – where issues dispute as to facts – of credit – whether tribunal should have ordered oral hearing – whether procedural fairness – whether grounds for leave to appeal

APPEAL – PROCEDURE – where fresh evidence filed on earlier appeal – where appeal allowed because party denied opportunity to file evidence in original hearing – where fresh evidence not filed in re-hearing – whether procedural fairness – whether grounds for leave to appeal

Dearman v Dearman (1908) 7 CLR 549

Fox v Percy (2003) 214 CLR 118

Pickering v McArthur [2005] QCA 294

Chandra v Queensland Building and Construction Commission [2014] QCA 335

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404

Chambers v Jobling (1986) 7 NSWLR 1

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 (Qld) (QCAT Act).

REASONS FOR DECISION

  1. [1]
    In October 2011, Mr Mayne advertised a Ford Utility for sale. King Developments Pty Ltd was interested in buying it. It turned out that the ute was a registrable write off, which King knew by way of a V check on 18 November 2011. King bought the ute anyway. By July 2012, after extensive work on the ute at King’s expense, the ute was still not registered. King filed a claim for compensation with the Office of Fair Trading.
  2. [2]
    The Office of Fair Trading referred the claim to the tribunal. The tribunal dismissed the claim. King appealed that decision. The appeal was allowed and the claim returned to the decision-maker. The tribunal, again, dismissed the claim. King has filed an application for leave to appeal the second decision.
  3. [3]
    King has two grounds of appeal. The first is that the tribunal should have held an oral hearing, rather than determined the claim on the papers. This is an appeal on an issue of law, for which leave to appeal is not required.
  4. [4]
    The second ground of appeal is multi-faceted. Kings submits that a number of the learned Member’s factual findings are wrong. This is an appeal on issues of fact, and therefore leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
  5. [5]
    The tribunal may conduct a proceeding without an oral hearing if appropriate[3]. As the Court of Appeal observed in Chandra v Queensland Building and Construction Commission[4] it is not appropriate to conduct a proceeding without an oral hearing if to do so would deny a party a fair opportunity to be heard[5]. In making a decision about the type of hearing, the tribunal must balance the objective to deal with matters in a way that is economical informal and quick[6] against the requirement to act fairly[7] and observe the rules of natural justice[8].
  6. [6]
    In directions dated 4 December 2013, the tribunal directed that, if there was no application for an oral hearing, the application was to be determined on the papers. There was no application for an oral hearing.
  7. [7]
    The absence of a request for an oral hearing does not mean that the tribunal can, without further consideration, proceed with a hearing on the papers. The Court of Appeal has made it clear that the method of proceeding is a matter for the tribunal.
  8. [8]
    Regrettably, I have formed the view that this dispute should have been determined by way of an oral hearing. The parties would, probably, not remembered or considered the directions of 4 December 2013 after King’s successful appeal in September 2014. There was a significant dispute about the facts of the case. The member’s determination required him to make findings of credit about various conversations between Mr King and Mr Mayne. That task is almost impossible without the benefit of oral evidence and the ability to cross-examine. Finally, the first application for leave to appeal succeeded because King did not have an opportunity to file material in response to Mr Mayne’s submissions. The first appeal tribunal referred the claim for re-hearing but that additional material was not before the decision-maker. Obviously, the decision-maker was going to make the same decision again in the absence of the fresh material.
  9. [9]
    The appeal is allowed. The claim is referred to the tribunal, before a different member, for an oral hearing de novo. For that reason, I do not need to determine issues of fact which are the subject of an application for leave to appeal. They will be matters for the tribunal to determine, based on oral evidence and all the necessary paperwork.
  1. [10]
    I direct:
    1. a)
      King Developments Pty Ltd may file and serve any additional material on which it wishes to rely, including but not limited to the material filed in APL524 -14 and any material on quantum, by 4:00pm on 24 March 2015.
    2. b)
      Mr Mayne may file and serve any material in reply by 4:00pm on 21 March 2015.
    3. c)
      The application OCL093-13 will be listed for hearing for one day on a date to be advised.

Footnotes

[1]   QCAT Act s 142(3)(a)(i).

[2] Pickering v McArthur [2005] QCA 294 at [3].

[3]  QCAT Act s 32(2)

[4]  [2014] QCA 335

[5]  Ibid at [61]

[6]  QCAT Act s 3(b)

[7]  QCAT Act s 28(2)

[8]  QCAT Act s 28(3)(a)

Close

Editorial Notes

  • Published Case Name:

    King Developments Pty Ltd v Mayne

  • Shortened Case Name:

    King Developments Pty Ltd v Mayne

  • MNC:

    [2015] QCATA 29

  • Court:

    QCATA

  • Judge(s):

    Senior Member Stilgoe OAM

  • Date:

    24 Feb 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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