Caysand No 24 Pty Ltd v Nugent [2012] QCATA 73

CITATION: Caysand No 24 Pty Ltd v Nugent [2012] QCATA 073 PARTIES: Caysand No 24 Pty Ltd (Applicant/Appellant) v John Robert Nugent (Respondent) APPLICATION NUMBER: APL307-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President DELIVERED ON: 30 April 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for leave is dismissed. 2. The Respondent's application for costs is refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – MOTOR VEHICLE – where the Tribunal made an order for payment of a sum of money by the Applicant to the Respondent – where the Tribunal made an order that, upon payment being made, the Respondent was to make available a motor vehicle for collection – whether the decision of the Tribunal was affected by an appellable error Queensland Civil and Administrative Act 2009, ss 32, 142 Property Agents and Motor Dealers Act 2000 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] Caysand seeks leave to appeal against a decision of the Tribunal delivered on 8 August 2011 in a Minor Civil Dispute. -- 1 of 3 -- 2 [2] Leave is required pursuant to section 142(3)(a)(i) of the QCAT Act. [3] The order in respect of which leave to appeal is sought required Caysand to pay the sum of $12,800 to Mr Nugent and, upon receipt of such sum, Mr Nugent was to make available to Caysand the motor vehicle which was the subject of his claim against Caysand. [4] The vehicle (a Nissan Patrol Diesel) was purchased on 7 October 2008. It was subject to a statutory warranty pursuant to the Property Agents and Motor Dealers Act 2000. [5] The grant of leave to appeal will ordinarily require that there be some question of general importance involved or there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. [6] In this case the issues which arose were entirely factual and largely turned upon questions of credibility of Mr Nugent on the one hand and the witnesses of the Applicant on the other. [7] The Tribunal accepted the evidence of Mr Nugent. [8] The crucial questions concerned when the defects manifested themselves; when Caysand knew about these; and, the attempts by Mr Nugent to have Caysand attend to them. [9] The account of Mr Nugent, which was accepted, was that the defects appeared immediately. He was directed to a mechanic described as the warranty mechanic who attended to one of the complaints but the more serious continued. Subsequently, he was again directed to the warranty mechanic but considerable delays were encountered before the vehicle could be inspected. In the meantime the vehicle ceased to be drivable. The vehicle was in a condition which the Tribunal regarded as effectively worthless. [10] Some 12 grounds are advanced as appeal grounds. Apart from the first three grounds, these largely amount to a re-canvassing of the factual issues on which Caysand failed. The first three grounds concern an alleged failure on the part of the Tribunal to allow the Applicant to produce evidence. I take this to be a reference to “warranty phone call statements”, which appears at page 12 of the transcript. There is nothing to indicate that the Applicant made any further attempt to introduce the documents. The passage in the transcript does not provide any support for the complaint the Applicant makes. The Applicant’s representative asked if the documents could be tendered and was told to allow the Respondent to finish his evidence. [11] In my view, the matter does not raise any question or matter which would call for the grant of leave to appeal. It is axiomatic that in determining the question of whether leave should be granted it is no part of the Tribunal’s function to determine where the truth lies between competing versions of the parties. [12] Mr Nugent seeks an order for costs in the event that leave is refused. [13] There is not in my view any basis for departing from the general principle reflected in s 100 of the QCAT Act. [14] The Respondent's application for costs is refused. -- 2 of 3 -- 3 [15] The application for leave is dismissed. -- 3 of 3 --