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Charter Yachts (Qld) Pty Ltd v Ridley[2025] QCATA 17

Charter Yachts (Qld) Pty Ltd v Ridley[2025] QCATA 17

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Charter Yachts (Qld) Pty Ltd v Ridley [2025] QCATA 17

PARTIES:

charter yachts (qld) pty ltd

(applicant/appellant)

v

monika ridley

(respondent)

APPLICATION NO/S:

APL040-24

ORIGINATING APPLICATION NO/S:

Q1823-23

MATTER TYPE:

Appeals

DELIVERED ON:

27 February 2025

HEARING DATE:

6 February 2025

HEARD AT:

Brisbane

DECISION OF:

Senior Member Traves

Member Munasinghe

ORDERS:

  1. Leave to appeal is allowed.
  2. The appeal is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where no application for leave to rely on fresh evidence made – where further evidence attached to application for leave to appeal – where evidence not taken into account –  where adjudicator erred in fact in summarising the evidence of the respondent as to the terms of the ‘bond deduction’ document – where leave to appeal allowed –  whether effect of document is that bond should be forfeited – where document to be read together with terms of Charter agreement – where decision to deduct amounts from security bond subject to clause 14.4 – where, given findings of Adjudicator, Operator not acting reasonably in making deduction – where no error in factual findings demonstrated – where appeal dismissed

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 11, s 142, s 147, Schedule 3

Crime and Corruption Commission v Lee [2019] QCATA 38

Campbell v Queensland Building and Construction Commission [2021] QCATA 34

Stewart v Metro North Hospital and Health Service [2024] QCA 225

Warren v Coombes [1978-1979] 142 CLR 531

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

  1. [1]
    This is an application for leave to appeal and/or appeal against the decision of the Tribunal on 16 November 2023 to allow the claim made by Monika Ridley for a refund of the security deposit she had paid as a condition of a boat charter. The learned Adjudicator ordered Charter Yachts (Qld) Pty Ltd pay the sum of $5,148.60, being the amount of the deposit paid and the court filing fee, to Monika Ridley within 21 days of the order.
  2. [2]
    Charter Yachts seek to appeal that decision.
  3. [3]
    As that decision was made in a proceeding for a minor civil dispute, the applicant must first obtain the Appeal Tribunal’s leave to appeal.[1]
  4. [4]
    As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage.[2] 
  5. [5]
    The legislative policy of the Queensland Civil and Administrative Act 2009 (Qld) (QCAT Act) is that primary decisions, particularly in minor civil disputes, should normally be final. An applicant for leave must show that it is reasonably arguable that the decision in question is affected by legal error, or was reached in patent disregard of evidence clearly established, or exhibits a finding of fact or credit that is ‘glaringly improbable’.[3]
  6. [6]
    If leave is granted, the appeal, being one against a decision on a question of fact or question of mixed law and fact, must be decided by way of rehearing.[4]

The background

  1. [7]
    Ms Ridley entered into a Bareboat Charter Agreement with Charter Yachts to charter a 14 metre monohull yacht called Morpheus around the Whitsunday Islands.
  2. [8]
    One of the conditions of the charter was the payment of a ‘security bond’ of $5,000 which was to be forfeited should certain events occur during the charter.
  3. [9]
    While Ms Ridley was in the course of attempting to moor the yacht at Palm Bay it ran aground, as a consequence of which the vessel was damaged. The cost to repair the vessel was approximately $9,500. Ms Ridley claimed the cause of the accident was the failure of Charter Yachts to provide her with an up-to-date navigational guide. The current version would have shown that the yacht could not enter the Palm Bay lagoon, in which case she says she would never had attempted to do so. Charter Yachts claimed the accident was caused by Ms Ridley’s poor seamanship and her failure to contact them in advance to notify them of her intention to moor there overnight (in which case, it says, it would have told her not to do so). 
  4. [10]
    Charter Yachts retained the security bond of $5,000 and refused Ms Ridley’s demand for return of the money.
  5. [11]
    Ms Ridley brought a claim in the minor civil disputes jurisdiction of the Tribunal seeking a full refund of the security bond from Charter Yachts.

The decision

  1. [12]
    The Adjudicator found in favour of Ms Ridley, ordering that Charter Yachts refund the security deposit to her. In arriving at that decision the learned Adjudicator found:
    1. Ms Ridley was a very experienced sailor and well qualified to control Morpheus;
    2. On the final night of the charter, due in the main to weather conditions, Ms Ridley made a decision to move the vessel from Happy Bay to Palm Bay;
    3. A term of the charter required the hirers of the vessel to report to the base several times a day, in particular as to where the boat would be moored overnight;
    4. Ms Ridley had difficulty on the day of the incident in communicating with base either by radio or by mobile phone;
    5. Ms Ridley relied on the Navigation Guide (version 13) in selecting Palm Bay as her overnight mooring;
    6. A representative of Charter Yachts, Mr Hodder, had recommended Palm Bay as a safe and appropriate anchorage for the last night of the charter;
    7. Version 13 of the Navigation Guide indicated the inside moorings at Palm Bay were suitable for vessels up to 14 metres in length;
    8. Version 13 had been superseded by Version 14 which was not on the vessel. Version 14 indicated the inside moorings were restricted to vessels up to 6 metres in length with shallow drafts;
    9. Had Ms Ridley been given access to version 14, she would ‘never have even contemplated attending the Palm Bay mooring’;
    10. The grounding occurred when Ms Ridley realised that the vessel would not fit in the lagoon;
    11. There was a significant failure by Charter Yachts to properly maintain information it made available to its customers;
    12. Charter Yachts were negligent in failing to have corrected version 13 or the recommendation as to Palm Bay provided by Mr Hodder;
    13. It could not be said that the damage occasioned to the vessel was caused by negligent acts or omissions or poor seamanship by Ms Ridley;
    14. Accordingly, there was no basis for retaining the security deposit and Charter Yachts were ordered to refund the deposit to Ms Ridley within 21 days.
  2. [13]
    The Adjudicator did not accept the submissions by Charter Yachts that the grounding was a result of poor seamanship; that there ought to have been ‘spotters’ on deck to check for reefs; that the fact the outside moorings were full should have been cause for Ms Ridley to pause before attempting to enter the lagoon; or that a tender should have been sent ashore to gain relevant information.

Grounds of Appeal

  1. [14]
    Charter Yachts have not addressed the issue of leave to appeal.
  2. [15]
    There are two grounds of appeal.
  3. [16]
    We propose to consider the grounds raised by Charter Yachts and Ms Ridley’s response with a view to determining whether leave to appeal should be given, and, if so, whether the appeal should be allowed.
  4. [17]
    The grounds are as follows:
    1. The Adjudicator failed to give any weight on the document which the applicant signed at the beginning of the charter stating that she was solely responsible for any loss or damage once the vessel was in her control.
    2. The applicant submitted a misleading statement to the court stating that she had no means of contacting Charter Yachts by either mobile phone or radio and was negligent in the safe operation of a vessel.

Ground One: No weight given to the terms of the documents signed by the charter parties

  1. [18]
    It is necessary at the outset to record that two documents, not (at least physically) part of the evidence before the Adjudicator, were attached to the material filed on the appeal. They were a Briefing Note signed on 26 December 2022 which provides:

I understand that I am responsible for any loss or damage that may occur while the vessel is under my control and that my security bond may be held for up to 10 days after return of vessel. (Please refer to Bond Deduction sheet for common damages or losses.)

  1. [19]
    And, secondly, a Credit Card Authority signed by Ms Ridley’s partner on 24 December 2022, the wording of which matched the terms of the document read into the record by Mr Moles and referred to below.
  2. [20]
    There is no application to adduce further evidence, nor reason to believe the requirements for the admission of fresh evidence would be met. The Briefing Note does not add anything to the issues in dispute and the contents of the Credit Card Authority were, in any event, read into the record at the hearing. We disallow the documents.
  3. [21]
    Charter Yachts’ ground is that no weight was given to the terms of the document read into the record and signed by, as matters transpired, Ms Ridley’s partner on 24 December 2022.
  4. [22]
    We infer that Ms Ridley’s partner was her agent for the purposes of the Credit Card Authority, since the giving of the bond was a condition of the Charter Agreement entered into by Ms Ridley.
  5. [23]
    In effect, this ground contends that the effect of the documents was to determine that the security bond should be forfeited.
  6. [24]
    We do not accept that as correct. The Charter Agreement contained the terms of charter between the parties, including the requirement for the bond and the circumstances in which it would be forfeited and returned. We would not construe the document to which Mr Moles refers as intended to vary the Charter Agreement, but rather to be read consonant with it. Accordingly, in our view, the fate of the bond turns on the proper meaning and effect of the Charter Agreement.
  7. [25]
    Before dealing with that, there is one matter we should deal with. In the Adjudicator’s reasons, he said:

Part of the conditions of the charter was that there would be a payment of a sum of $5 000. That amount was described as a security deposit, against certain events occurring during the charter. It was also described variously as, in effect, an insurance excess payment.

Although not in evidence, CYA contended that as part of the terms of that security deposit, there was a document signed by the applicant which gave a more extensive explanation as to what that security deposit might cover. It was acknowledged by the applicant that such a document had been signed and she accepted that it had been signed by her partner. What that document then went on to describe, as indicated by Mr Mole, was that it would cover acts which you could describe as negligent control of the boat, whereby damage was occasioned to the boat. (emphasis added)

  1. [26]
    This summary of the further document is not consistent with the evidence. 
  2. [27]
    In the transcript of the hearing Mr Mole, the representative for Charter Yachts, refers to the ‘bond deduction information’ which he says is given to the charterers when they take the bond and which sets out a variety of things as a result of which a charterer would lose the bond or security deposit. The Adjudicator asks why he hasn’t got that and Mr Mole replies that he isn’t sure.
  3. [28]
    Later, Mr Mole repeats himself and says:

It’s unfortunate you actually haven’t got that bond deduction information that we provide and that the charterer signs, which actually includes berthing description, vessel grounding, sailing monohull yacht over 39 foot, $5 000.

  1. [29]
    Ms Ridley at first said she could not remember the document.
  2. [30]
    Mr Mole then retrieves the document from his bundle and says:

Here we are. We got it. Okay. Yes:

…hereby authorise Charter Yachts Australia to hold a pre-authority of $5 000 for any possible damage or loss to the vessel or shark shield during my charter. Should an incident occur, this amount will be deducted from my card.

  1. [31]
    Ms Ridley, in the hearing, after Mr Mole read out the document, said she remembered it and that her partner signed it.
  2. [32]
    As is apparent from the transcript, Mr Mole did not describe the text of the document in the way described by the Adjudicator in his reasons.[5]
  3. [33]
    Although we do not find the Adjudicator made an error in failing to give weight to a document that was not in evidence (that is, to the Briefing Note) the learned Adjudicator’s finding as to the content of the document referred to orally by Mr Mole (that is, to the ‘bond deduction form’ or Credit Card Authority) is contrary to the only evidence as to its contents.
  4. [34]
    There was no issue at the hearing that Mr Mole did not accurately represent its contents. Moreover, the Adjudicator erroneously gave effect to what he understood to be the terms of the document. The Adjudicator’s finding as to the content of the document was ‘glaringly improbable’, given the only evidence as to its contents, and this constitutes an error of law. It was also material to his decision. Accordingly, we set that finding aside and grant leave to appeal.[6]

What does the contract say about the security bond?

  1. [35]
    Clause 3.5 of the Charter Agreement provides that if there are no deductions from the security bond it must be refunded to the Charterer within 14 days of the redelivery date.
  2. [36]
    Clause 3.5 provides that in the event of any deductions from the security bond for insurance excess or consequential credit card or banking charges, demurrage, repair of any damage or loss of equipment or any accident, breakdown, recall or repossession of the Boat, the balance will be refunded to the Charterer as soon as is reasonable practicable once the repairs are completed or the deduction is calculated, whichever is the latter.
  3. [37]
    A number of discrete clauses then outline the circumstances in which a deduction from the security bond may occur or where costs may be owed by the Charterer. They include:
    1. for cleaning (clause 10);
    2. for service calls (clause 11);
    3. for costs associated with replacement (clause 13);
    4. for accidents or breakdowns (clause 14);
    5. insurance excesses payable in connection with claims made under the Operators policy (clause 18).
  4. [38]
    Clause 18 deals with insurance excess amounts payable by the Operator. This clause was not referred to by either party or by the Adjudicator.
  5. [39]
    Clause 18 provides:

Insurance

18.1 The Operator insures the Boat for the Charter Period as protection against fire, damage, marine collision, risk, hazards of the voyage, including engine, hull and vessel equipment and any accidental loss or damage that may occur, or be caused by, the Boat during the Charterer Period PROVIDED the Boat is operated in compliance this (sic) agreement and any guidelines issued by the Operator’s insurer BUT DOES NOT extend to any damage or loss caused or contributed to by malicious or wilful acts and breach of any law.

18.2  Any excesses in connection with claims made under the Operator’s policy may be debited by the Operator against the Security Bond, or otherwise be owing by the Charterer.

  1. [40]
    However, in our view, the operation of all clauses which permit a deduction from the security bond, including clause 18, are subject to clause 14.4.
  2. [41]
    Clause 14.4 provides, in relation to the security bond, that:

The Operator at its discretion, acting reasonably, shall determine if the cost of any repair, service (including cost for service vessels), breakdowns, recall or repossession or any other costs incurred by the Operator are chargeable to the Charterer and if so will be deducted from the Security Bond or otherwise be owing by the Charterer. (emphasis added)

  1. [42]
    Whether the bond was forfeited in relation to costs of repair, or for the insurance excess, which in our view falls within ‘any other costs incurred by the Operator’, the deduction of the bond requires the Operator, in the exercise of its discretion, to act reasonably.
  2. [43]
    The Adjudicator found that the cause of the Morpheus running aground was the out-of-date Navigation Guide provided on the Boat, coupled with the oral advice given by the Charter Yachts Operations Manager to Ms Ridley that Palm Bay was a good place to moor. The Adjudicator did not accept that Ms Ridley had been negligent in her control of the vessel or in making the decision to attempt to moor at Palm Bay.
  3. [44]
    We see no reason to disturb those findings.
  4. [45]
    In those circumstances, we do not accept that the Operator acting reasonably was entitled to deduct the total insurance excess payment from the security bond.
  5. [46]
    The appeal is not allowed in relation to ground one.

Ground Two: The applicant made a misleading statement to the court stating she had no means of contacting CYA by either mobile phone or radio and was negligent in the safe operation of a vessel.

  1. [47]
    Charter Yachts submitted that Ms Ridley misled the court because she must have been able to contact Charter Yachts, given she made calls to them after the grounding.
  2. [48]
    However, there is a factual finding by the Adjudicator that Ms Ridley had difficulty on the day of the incident in communicating with base either by radio or by mobile phone.
  3. [49]
    Charter Yachts has not shown that factual finding to be glaringly improbable on the evidence. As Ms Ridley submitted, the fact she could contact Charter Yachts after the accident does not prove she could not contact them prior to the accident. She had given evidence during the initial hearing that the radio worked ‘on and off’ and that mobile reception was variable.
  4. [50]
    Further, for the error alleged to be relevant and material, Charter Yachts would need to prove that, had Ms Ridley made a call to Charter Yachts, that they would have advised her that Palm Bay lagoon was no longer accessible by boats 6 metres or over in length. Although Mr Mole gave evidence in the hearing that if Charter Yachts had been advised they were going to Palm Bay, they would have told them not to go there,[7] no such finding was made. Indeed, and to the contrary, the Adjudicator found that a representative of Charter Yachts, Mr Hodder, had recommended to Ms Ridley before they left in Morpheus that Palm Bay was a safe and appropriate anchorage for the last night of the charter.
  5. [51]
    Further, Charter Yachts submit that Ms Ridley was negligent in the safe operation of a vessel. The learned Adjudicator made a finding that Ms Ridley was not negligent. While we acknowledge that a decision of this nature is an evaluative one, and that an Appeal Tribunal will be in as good a position as the Adjudicator to decide on the proper inference to be drawn from the established facts, giving proper weight and respect to the conclusion drawn by the Adjudicator we see no reason to intervene.[8] Charter Yachts, by providing an out-of-date and incorrect Navigational Guide, and by encouraging Ms Ridley to anchor at Palm Bay on the final night of the charter, created a dangerous situation in which Ms Ridley manoeuvred Morpheus into a bay that was too shallow for her vessel. In the circumstances the learned Adjudicator found Ms Ridley was not negligent, and we find that Charter Yachts did not prove to the contrary.
  6. [52]
    The Adjudicator has not erred in this respect.

Conclusion

  1. [53]
    For the above reasons, we dismiss the appeal.

Footnotes

[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 142(3)(a)(i).

[2] Crime and Corruption Commission v Lee [2019] QCATA 38 at [12]; Campbell v Queensland Building and Construction Commission [2021] QCATA 34 at [17].

[3] Riley v Bishop [2018] QCATA 151 at [14] citing Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 per Brennan, Gaudron and McHugh JJ; Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 at 844.

[4]  QCAT Act, s 147.

[5]  Reasons 1-2, at [25].

[6] Stewart v Metro North Hospital and Health Service [2024] QCA 225 at [65] citing Wang v Hur [2024] QCA 126 at [24].

[7]  Transcript at 1-4, at [20]-[25].

[8] Warren v Coombes [1978-1979] 142 CLR 531 at 551.

Close

Editorial Notes

  • Published Case Name:

    Charter Yachts (Qld) Pty Ltd v Ridley

  • Shortened Case Name:

    Charter Yachts (Qld) Pty Ltd v Ridley

  • MNC:

    [2025] QCATA 17

  • Court:

    QCATA

  • Judge(s):

    Senior Member Traves, Member Munasinghe

  • Date:

    27 Feb 2025

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842
1 citation
Jump To
Cite 1 - (1985) 59 ALJR 842
Campbell v Queensland Building and Construction Commission [2021] QCATA 34
2 citations
Jump To
Cite 1 - [2021] QCATA 34
Cite 2 - [2021] QCATA 34
Crime and Corruption Commission v Lee [2019] QCATA 38
2 citations
Jump To
Cite 1 - [2019] QCATA 38
Cite 2 - [2019] QCATA 38
Devries v Australian National Railways Commission (1993) 177 CLR 472
1 citation
Jump To
Cite 1 - (1993) 177 CLR 472
Riley v Bishop [2018] QCATA 151
1 citation
Jump To
Cite 1 - [2018] QCATA 151
Stewart v Metro North Hospital and Health Service [2024] QCA 225
2 citations
Jump To
Cite 1 - [2024] QCA 225
Cite 2 - [2024] QCA 225
Wang v Hur [2024] QCA 126
1 citation
Jump To
Cite 1 - [2024] QCA 126
Warren v Coombes (1978-1979) 142 CLR 531
2 citations
Jump To
Cite 1 - (1978-1979) 142 CLR 531
Cite 2 - (1978-1979) 142 CLR 531

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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