Dutta v Guy Kits t/a Design Build Homes [2014] QCATA 280

CITATION: Dutta v Guy Kits t/a Design Build Homes [2014] QCATA 280 PARTIES: Prit Nath Dutta (Applicant/Appellant) v Guy Kits t/a Design Build Homes (Respondent) APPLICATION NUMBER: APL002-14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM Member Deane DELIVERED ON: 30 September 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The Application for leave to appeal or appeal is dismissed. CATCHWORDS: APPEALS – leave to appeal or appeal – no demonstrated error Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142 Lida Build Pty Ltd v Miller and Anor [2011] QCATA 219 Gemview Jewellery v Florian Stafleu [2011] QCATA 276 Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 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). -- 1 of 3 -- 2 REASONS FOR DECISION [1] Mr Dutta applied for a refund of moneys paid to a business operated under the name Design Build Homes. By decision dated 5 December 2013 the Tribunal dismissed his application. Mr Dutta applies for leave to appeal or appeal against the Tribunal’s decision. [2] Where grounds of appeal contend there has been an error of fact or mixed law and fact leave to appeal is necessary.1 [3] There are well established principles as to when leave should be granted.2 Is there a reasonably arguable case of error in the decision? Is there a reasonable prospect that the applicant will obtain substantive relief? Is leave necessary to correct a substantial injustice to the applicant caused by some error? Is there a question of general importance upon which further argument and a decision the Appeal Tribunal would be to the public advantage? [4] Mr Dutta’s application and submissions are not particularly helpful in addressing these principles. It appears his position is that the Tribunal was in error in making the findings it did, the facts should be reconsidered and a different decision made. On that basis he effectively contends that there were errors of fact or mixed law and fact and so leave is required. [5] In his submissions he seeks essentially to reargue the case he made at the hearing and challenges the learned Member’s findings. As has been previously observed by the Appeal Tribunal3 The appeal process is not for rearguing the case; it is for correcting errors made in the decision of the tribunal. [6] Mr Dutta points to the learned Member’s statement that he received a set of architectural plans4. Mr Dutta says this is an error. [7] This statement is contradicted later in the reasons where the learned Member states5 although it also be true that these plans were not quite finalised at the time when Mr Dutta walked away from the agreement [8] From the later statement it is clear that the learned Member understood and accepted that a final approved set of plans had not been delivered to Mr Dutta by Design Build Homes. We are not satisfied that any error flowed from the learned Member’s statement at [3] of his reasons. [9] Mr Dutta has not identified an error in the Tribunal’s reasoning as distinct from disagreeing with the findings. 1 QCAT Act s 142(3)(b). 2 Lida Build Pty Ltd v Miller and Anor [2011] QCATA 219. 3 Gemview Jewellery v Florian Stafleu [2011] QCATA 276 at [15]. 4 Reasons at [3]. 5 Reasons at [18]. -- 2 of 3 -- 3 [10] The learned Member essentially found that: a) The written agreement though not signed had been provided to Mr Dutta at the first meeting6 and bound the parties as if it had been signed7; b) Design Build Homes acted within the terms of the agreement with Mr Dutta8; c) Design Build Homes was ready willing and able to perform its obligations within the terms of the agreement9; d) Mr Dutta’s actions in terminating the agreement prevented Design Build Homes from completing its obligations under the agreement10; e) In these circumstances no refund was due even though a final approved design had not been obtained by Mr Dutta11. [11] Mr Dutta challenges these findings and seeks to reargue that the initial agreement was verbal and that the written agreement provided after the first meeting imposed additional terms. [12] An appeal tribunal will not usually disturb findings of fact on appeal if it considers the conclusions of the decision maker below were able to be made on the evidence before them,12 however may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.13 [13] The question for this Appeal Tribunal is whether or not the relevant findings by the learned Member were open on the evidence. We find that they were. [14] Nothing in the submissions or in the transcript or the reasons of the learned Member suggest any error of fact or law or that any finding was not reasonably open on the evidence. [15] We are not satisfied that there is a demonstrated error and therefore there is no basis for leave to appeal. 6 Reasons at [8]. 7 Reasons at [16]. 8 Ibid. 9 Reasons at [18]. 10 Ibid. 11 Reasons at [18] and [19]. 12 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125 – 126. 13 Chambers v Jobling (1986) 7 NSWLR 1 at 10. -- 3 of 3 --