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Willich v Kurylo[2016] QCATA 27

CITATION:

Willich v Kurylo [2016] QCATA 27

PARTIES:

John Peter Willich

(Applicant/Appellant)

v

Carl Kurylo

(Respondent)

APPLICATION NUMBER:

APL327 -15

MATTER TYPE:

Appeals

HEARING DATE:

1 February 2016

HEARD AT:

Brisbane 

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

2 March 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Leave to appeal refused

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE –  CONSUMER/TRADER – where agreement to work on car – where dispute about quality and value of work done – where tribunal made order – where parties did not comply with order – where proceeding renewed – where orders by consent – where owner of car not satisfied with orders – whether grounds for leave to appeal

Pickering v McArthur [2005] QCA 294

APPEARANCES and REPRESENTATION (if any):

Applicant:

In person

Respondent:

In person

REASONS FOR DECISION

  1. [1]
    John Willich owns a 1937 Chevy ute. He sent it to Carl Kurylo for modification. Progress was slow. Eventually, Mr Kurylo sent Mr Willich an invoice. Mr Willich refused to pay because he thought the work was shoddy and the charge excessive.
  2. [2]
    On 16 February 2015, the tribunal ordered Mr Willich pay Mr Kurylo $4,900 by bank cheque on or before 4 pm on 23 February 2015. Upon receipt of that payment, Mr Kurylo was to return the Chev to Mr Willich.
  3. [3]
    Mr Willich did not pay Mr Kurylo by the due date, although he did draw a bank cheque for that purpose. Mr Kurylo did not return the Chev. Mr Willich applied for a renewal of the proceedings.
  4. [4]
    In the meantime, Mr Kurylo returned the Chev. On 22 July 2015, the tribunal vacated the February order. It ordered Mr Kurylo, by his courier, return the front end and tail shaft by 27 July 2015. On receipt of those items, Mr Willich was to pay Mr Kurylo’s courier $140.
  5. [5]
    Mr Willich wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, 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]
  6. [6]
    Mr Willich had two grounds of appeal. The first is that the learned Adjudicator erred in stating that Mr Kurylo owned the Chev and that this error infected the tribunal’s decision. The second ground of appeal is that he should not have to pay $140 for the return of the Chev.

Ownership of the Chev

  1. [7]
    I’ve read the transcript carefully. I cannot find any evidence of that the learned Adjudicator wrongly thought that Mr Kurylo owned the Chev. On the contrary, it is clear from the learned Adjudicator’s comments[3] that he was always aware that Mr Willich owned the Chev. There is no substance to this ground of appeal.

The payment of $140

  1. [8]
    Mr Willich says the tribunal erred in ordering that he pay Mr Kurylo’s courier $140 because Mr Kurylo was required to return the tail shaft.
  1. [9]
    There are two problems with Mr Willich’s submission. The first is that the transcript shows the $140 was intended to compensate Mr Kurylo for his work in lengthening the tail shaft[4]. The second problem, is that the tribunal’s order was made with the parties’ consent[5]. Mr Willich cannot appeal an agreement, which was perfected by an order of the tribunal.

Other matters

  1. [10]
    Mr Willich says that his Chev has suffered further damage at the hands of Mr Kurylo. As I explained at the hearing, an application for leave to appeal is not the appropriate place to bring a fresh claim. If Mr Willich wants to pursue that issue, he must bring fresh proceedings. It would be helpful if, in any fresh proceedings, Mr Willich had proper evidence to support his claim.
  1. [11]
    There is no reasonably arguable case that the tribunal was in error. Leave to appeal should be refused.

Footnotes

[1]QCAT Act, s 142(3)(a)(i).

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

[3]See, for example, transcript page 1-17, lines 42 – 44; page 1-19, line; page 1-21, line 10-37

[4]Transcript page 1-23.

[5]Transcript page 1-28.

Close

Editorial Notes

  • Published Case Name:

    John Peter Willich v Carl Kurylo

  • Shortened Case Name:

    Willich v Kurylo

  • MNC:

    [2016] QCATA 27

  • Court:

    QCATA

  • Judge(s):

    Senior Member Stilgoe

  • Date:

    02 Mar 2016

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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