Barrett & Anor v APVC Ltd (t/a Accor Vacation Club) [2022] QCATA 156

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION PARTIES: APPLICATION NO: MATTER TYPE: DELIVERED ON: HEARING DATE: HEARD AT: DECISION OF: Barrett & Anor v APVC Ltd (t/a Accor Vacation Club) [2022] QCATA 156 ELIZABETH CLAIRE BARRETT and BARRY DOUGLAS BARRETT (applicants) v APVC LTD (t/a ACCOR VACATION CLUB) (respondent) APL315-21 Other minor civil dispute matters 4 October 2022 27 September 2022 Brisbane Dr J R Forbes ORDERS: 1. The application for leave to appeal is adjourned sine die to the registry, upon the conditions following. 2. The Barretts’ next step, if any, in these proceedings must be taken within 28 days of this decision. If this condition is not fulfilled the respondent may apply for dismissal of the application for leave to appeal. 3. Either party is at liberty to restore the application for leave to the hearing list upon 14 days’ notice in writing to the other party and to the registry. CATCHWORDS: APPEAL – APPLICATION FOR LEAVE TO APPEAL – MINOR CIVIL DISPUTE – CONSUMER DISPUTE – where respondent operates a vacation club – where club allocates points to members entitling them to apply for subsidized accommodation at domestic venues and overseas – where access to preferred accommodation at particular times not guaranteed – where applicants are members of club – where applicants dissatisfied with club’s service – where applicants claim agreement void and seek refund of membership fees - primary decision to dismiss the original application – where reopening order sought – where reopening refused – where applicants lodge application for leave to appeal against primary decision – where applicants object to hearing of application for leave to appeal until -- 1 of 4 -- reasons are given for refusal to reopen – where adjournment of leave application granted conditionally Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 4, s 122, s 138, s 139 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Pappas v Meikeljohn’s Accountants [2017] QCATA 60 Sali v SPC Limited (1993) 67 ALJR 841 The Pot Man Pty Ltd v Reaoch [2011] QCATA 318 Thundiyil v Madappan [2013] QCATA 43 Todd v Downing [2011] QCATA 74 Total Driver Pty Ltd & Anor v Hedley [2020] QCATA 81 APPEARANCES & REPRESENTATION: Applicant: Self represented Respondent: Self represented REASONS FOR DECISION Introduction [1] In July 2020 the applicants (‘the Barretts’) joined the Accor club, a managed investment scheme, formerly operating as Accor Premiere Vacation Club and, since 2008, as Accor Vacation Club (‘the Club’). [2] Before joining the Club aspiring members, including the Barretts, were questioned about their holiday plans and financial circumstances, and advised of a membership class that seemed appropriate for the particular applicants concerned.1 [3] The Barretts’ recommended membership class was described as Platinum Five, for which the annual fee was $1,100.2 In return the Club credited them with an annual quota of points entitling them to use accommodation, as and when they booked it, at venues recognised by the Club.3 However, members were explicitly warned that: … the main risk associated with joining the Club is that, because holiday accommodation is subject to availability, you may not be able to get your preferred location at your preferred time.4 [4] Soon after the Barretts joined the Club the ‘flexibility’ of their membership rights was impaired by the Covid pandemic, by related travel restrictions, and Mrs Barrett’s increasing fear of international terrorism.5 [5] For those reasons, and possibly others, the Barretts made quite limited use of their Club entitlements, despite the Club’s encouragement to use those rights more freely.6 1 Reserved decision delivered on 10 August 2021 (‘the judgment’) paragraph 11(a). 2 Transcript of hearing 22 July 2021 (‘T’) page 7 line 11. 3 Judgment paragraph [6]. 4 Judgment paragraph 12(d). 5 Judgment paragraphs [22g], [48]; T page 27 lines 19-37. 6 T page 23 lines 26-46. -- 2 of 4 -- [6] Following a series of unsuccessful attempts to secure desired bookings Mr Barrett concluded that membership of the club was the worst financial decision he’d ever made.7 [7] Suiting their action to that utterance the Barretts instituted this action against the Club, alleging inter alia negligent investment advice, breach of contract, failure of consideration, and frustration of the agreement.8 [8] The Club, by its response, denied liability and submitted that the action should be dismissed. [9] The dispute was heard on 22 July 2021 and on 10 August 2021 the Tribunal, in a careful and detailed judgment, dismissed the Barretts’ case. [10] The Barretts then lodged a reopening application9 which was dismissed on 5 October 2021. That decision was confirmed on 3 November 2021. [11] On 11 and 31 October 2021 the Barretts sought a statement of reasons for the dismissal of their reopening application. They complain that to the present time they have received no response to that request. [12] On 15 November 2021 Barretts filed an application for leave to appeal against the substantive judgment delivered on 10 August 2021. [13] But at the hearing of that leave application the Barretts sought to adjourn that quest while they pursue their historic demand for reasons for the rejection of their reopening application. Mr Barrett, for the Applicants, insisted that they should not be required to present their substantive appeal until those reasons were supplied. He was not deterred by the prospect that an adjournment would inevitably and indefinitely postpone any entitlement the Barretts may eventually have to substantive relief.10 [14] The Tribunal offered the consideration that the demand for interlocutory reasons be subsumed to the present application for leave to appeal, in the interests of the parties and of others in the queue11, the public purse, and the spirit of the QCAT legislation.12 In all courts, and particularly in tribunals such as QCAT, finality of litigation is a vital consideration.13 [15] However, Mr Barrett read and re-read with portentous emphasis section 122 of the QCAT Act, without reference to the terms or significance of section 139(5): The tribunal’s decision on the [reopening] application is final and cannot be challenged, appealed against, reviewed, set aside, or called in question in another way, under the Judicial Review Act 1991 or otherwise.14 [16] Indeed, there is support for the view that s 139(5) is fatal to an application for leave to appeal,15 particularly where the application for leave is effectively an attempt to overturn 7 T page 24 line 26. 8 Application for minor civil dispute – consumer dispute filed 24 July 2020. 9 QCAT Act s 138; reopening application lodged on 13 September 2021. 10 The originating application claims $25,000 by way of relief. 11 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 217; Sali v SPC Limited (1993) 67 ALJR 841 at 843-844; The Pot Man Pty Ltd v Reaoch [2011] QCATA 318. 12 QCAT Act s 3(b), s 4(b) and (c). 13 Pappas v Meikeljohn’s Accountants [2017] QCATA 60 at [10] per Thomas QC. 14 Total Driver Pty Ltd & Anor v Hedley [2020] QCATA 81. 15 Total Driver (above) at [39]. -- 3 of 4 -- a refusal to reopen the case.16 However, as that point was not canvassed before me, I say no more about it here. [17] Apart from the expatiation on section 122, the Barretts invoked the mantra (or tabula in naufragio) of natural justice. I have reluctantly decided that a refusal of the adjournment may well, on balance, generate more litigious complexity than to grant it. Unsurprisingly, the Club, which continues, at least pro tem, to be free from any judgment debt, did not strenuously oppose an adjournment. [18] It is a matter for the Barretts to consider how the giving of reasons for the refusal to reopen might be enforced, and what the utility of any enforcement may be. It is not for this appeal tribunal to offer advice. If the proceedings become intolerably tortuous questions of costs inter partes might arise. [19] The application for leave to appeal will be adjourned sine die to the registry and upon conditions that the Barretts’ next step, if any, in these proceedings must be taken within 28 days of this decision. Either party is at liberty to restore the application for leave to the hearing list upon 14 days’ notice to the other, and to the registry. ORDERS 1. The application for leave to appeal is adjourned sine die to the registry, upon the conditions following. 2. 2 The Barretts’ next step, if any, in these proceedings must be taken within 28 days of this decision. If this condition is not fulfilled the respondent may apply for dismissal of the application for leave to appeal. 3. Either party is at liberty to restore the application for leave to the hearing list upon 14 days’ notice in writing to the other party and to the registry. 16 Todd v Downing [2011] QCATA 74 at [12] (Wilson P); Thundiyil v Madappan [2013] QCATA 43 at [4]. -- 4 of 4 --