Exit Distraction Free Reading Mode
- Unreported Judgment
OzInvest Realty Pty Ltd v MacDonald QCATA 47
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
OzInvest Realty Pty Ltd v MacDonald  QCATA 47
OZINVEST REALTY PTY LTD
ORIGINATING APPLICATION NO:
Claim MCDO117-17 (Beenleigh)
10 April 2019
On the papers
Leave to appeal against the decision made on 15 May 2018 in Claim MCDO117-17 Beenleigh is refused. The appeal therefore fails.
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN NO APPEAL LIES – leave to appeal – where the only ground of appeal relies on fresh evidence being put before the tribunal – where the evidence was not before the Adjudicator but could have been put before him – where the Appeal Tribunal is unable to accept the fresh evidence – whether any reasonably arguable grounds of appeal
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
- On the application of Tyler MacDonald, on 15 May 2018 an Adjudicator sitting in Beenleigh ordered OzInvest Realty Pty Ltd to pay to him the sum of $423.50. This was a cancellation fee, interest and filing fee costs arising from a contract for work to be done by Mr MacDonald at the request of OzInvest at one of the properties that they managed.
- The Appeal Tribunal has obtained a transcript of the hearing of this matter. One issue at the hearing was between whom the contract had been made. On that issue, on the documents seen and evidence heard, the Adjudicator decided that the contract was between OzInvest and Mr MacDonald. Although the Adjudicator did refer to an agency agreement between OzInvest and the owner of the property, it is clear from his reasons that the agency agreement did not result in a contract between the owner of the property and Mr MacDonald instead: he held that the agency agreement was a separate contract between OzInvest and the owner of the property.
- He also found that Mr MacDonald was entitled to charge a $300 cancellation fee and receive an amount for interest and the filing fee, resulting in the total of $423.50.
- OzInvest now appeals against that order, saying that Mr MacDonald had signed a ‘Contractor Appointment Form’ before the contract in question was entered into which stated that he acknowledged that OzInvest acted only as agent for ‘one or more lessors’ and the payment for work ‘rests solely with the relevant lessor’. One obvious legal difficulty with this acknowledgement is that it did not disclose the actual principal concerned, so it may well not have affected the outcome of the hearing.
- Of significance however, is the fact that the Contractor Appointment Form was not relied on by OzInvest before the Adjudicator. It was not mentioned at the hearing, and it was not in the papers before the Adjudicator. The only way OzInvest could rely on it in this appeal would be to apply for permission to introduce it as fresh evidence. There has been no such application. If such an application were made, it would be refused because clearly the evidence could have been made available for the original hearing. Since an appeal is not an opportunity to try for a second time to win a case with better evidence, this fresh evidence cannot be accepted.
- There is no appeal on any other ground.
- Appeals in minor civil disputes can only be brought with the leave of the Appeal Tribunal. Such leave will only be given if there is an arguable case on appeal. Such appeals are only arguable if the decision maker is in error in law, or has made a factual finding which could not be made on the evidence and is of such importance as to require leave to be given. This is not the case here. Leave to appeal is refused and the appeal therefore fails.
- Published Case Name:
OzInvest Realty Pty Ltd v Tyler MacDonald
- Shortened Case Name:
OzInvest Realty Pty Ltd v MacDonald
 QCATA 47
10 Apr 2019