SUPREME COURT OF QUEENSLAND

CITATION:	Prestige & Rich Pty Ltd & Anor v Chief Executive, Department of Justice and Attorney General, Office of Fair Trading & Anor [2021] QCA 58	
PARTIES:	PRESTIGE & RICH PTY LTD
ACN 141 590 383
(first applicant)
STEPHANIE ELIZABETH TO
(second applicant)
v
CHIEF EXECUTIVE, DEPARTMENT OF JUSTICE AND ATTORNEY GENERAL QUEENSLAND, OFFICE OF FAIR TRADING
(first respondent)
JIANJIE LI
(second respondent)	
FILE NO/S:	Appeal No 361 of 2021
QCATA No 14 of 2019	
DIVISION:	Court of Appeal	
PROCEEDING:	Application for Leave Queensland Civil and Administrative Tribunal Act	
ORIGINATING COURT:	Queensland Civil and Administrative Tribunal – [2020] QCATA 165 (Senior Member Brown)	
DELIVERED EX TEMPORE ON:	
25 March 2021	
DELIVERED AT:	Brisbane	
HEARING DATE:	25 March 2021	
JUDGES:	Sofronoff P	
ORDERS:	1.	Application for leave to appeal is refused.
2.	The applicants pay the respondents’ costs of and incidental to the application on the standard basis.	
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where the applicants are real estate agents – where a buyer paid a deposit to the applicants for a contract of sale of land – where the contract of sale was terminated and the applicants failed to repay the buyer the deposit, taking it for themselves on commission – where the buyer lodged a claim with the Chief Executive, Department of Justice and Attorney General, Office of Fair Trading – where the Chief Executive made a decision that the applicant was liable to pay the buyer’s deposit under sections 21, 78 and 82 of the Agents Financial Administration Act 2014 – where the applicant sought leave to review the Chief Executive’s decision to the Queensland Civil and Administrative Appeal Tribunal – where the Appeal Tribunal dismissed the applicant’s review – whether the applicant can appeal the Appeal Tribunal’s decision – whether the Appeal Tribunal made errors of law necessitating leave to appeal
Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33, considered	
COUNSEL:	R Hong for the first applicant (general manager)
No appearance for the second applicant
K M Hillard for the first respondent
No appearance for the second respondent	
SOLICITORS:	The first applicant appeared on their own behalf
No appearance for the second applicant
Department of Justice and Attorney-General (Qld) for the first respondent
No appearance for the second respondent	
[1]	SOFRONOFF P:  This is an application for leave to appeal from a decision of the QCAT Appeal Tribunal.
[2]	The applicants are real estate agents who acted as selling agent for owners of land in Brisbane.  They were able to secure a contract for sale with a buyer, Mr Li, who paid a deposit of $24,500.00 to the applicants’ trust account.  The contract for sale was terminated by Mr Li for failure to obtain finance and the solicitors for the vendor instructed the applicants to repay the deposit to Mr Li.  The applicants did not do so.  Instead they paid $4,500.00 to the vendors and took the remaining $20,000.00 for themselves in purported payment of a commission on sale.
[3]	Section 21 of the Agents Financial Administration Act 2014 provides that amounts paid to the trust account of an agent may only be paid out in a way permitted by the Act.  Because the contract had fallen through, the applicants were not entitled to commission.
[4]	Section 78 of the Act establishes a claim fund and s 82 provides that a person may claim against the fund if the person suffers financial loss because of a contravention of, among other things, s 21 of the Act.
[5]	A person is also entitled to make a claim if the person suffers financial loss by reason of a misappropriation by a relevant person, who includes a real estate agent, of property entrusted to that person as agent.
[6]	Mr Li lodged a claim with the Chief Executive of the Department seeking recompense for the amount of the deposit moneys.  The Chief Executive found that the applicants were liable to Mr Li in the amount of $24,500.00, the amount that Mr Li had paid by way of deposit.
[7]	The applicants filed an application to review that decision and on 14 December 2018 QCAT dismissed that application.  The applicants then appealed that decision to the QCAT Appeal Tribunal which dismissed that appeal.  The applicants now seek leave to appeal to the Court of Appeal against that dismissal of their appeal.  Section 150 of the Queensland Civil and Administrative Tribunal Act 2009 provides that an appeal to the Court of Appeal in a case such as this one may be made only on a question of law and only if the party has obtained the Court’s leave to appeal.
[8]	A statutory requirement for leave to appeal is a manifestation of the principle of finality in litigation.  The underlying public interest is that there should be finality in litigation and, in general, a litigant should not be repeatedly vexed in the same matter.  A second appellate court should not, in the absence of special reasons such as plain injustice or clear error, disturb concurrent findings of fact made by a trial judge and an intermediate appellate court.  It is in the overall interests of the administration of justice and the preservation of at least some vestige of practical equality before the law that, in the absence of special circumstances, there should be an end to the litigation of an issue of fact where such concurrent findings have been made.  The qualification concerning ‘special reasons’ shows that the rule is not inflexible.
[9]	In Coulton v Holcombe the High Court said that it is fundamental to the due administration of justice that issues between the parties are ordinarily settled at trial.  It follows that the tendency to treat a trial as the first round of a contest that will last until one side or the other exhausts its funds or available avenues of appeal has to be resisted.  Litigation has its limitations, not least because the parties are generally free to frame the issues and the outcome is a result of an adversarial processes.  Because of this, it is often possible to argue that, if the trial had been conducted differently, or different evidence had been presented, the outcome might have been different.
[10]	It is for this reason that leave to appeal a decision of QCAT requires leave.  Leave will not be granted unless there are reasonable prospects of establishing that there has been an error of law.  However, as Lord Wilberforce said in The Ampthill Peerage, the law aims at providing the best and safest conclusion compatible with human fallibility and, having reached that solution, it closes the book.  That is why mere demonstration of error is, generally not sufficient and an applicant must, in general, show that an appeal is necessary to correct a substantial miscarriage of justice.  When an applicant has already failed after twice having the arguments considered on the merits, this will weigh very heavily against the grant of leave because, having regard to the need for finality in litigation, it will rarely be necessary in the interests of justice to conduct yet another review.  Even more so, when a consideration of a possible error of law would require the Court to reconsider the facts after they have been the subject of concurrent findings below, leave will generally be refused.
[11]	To proceed otherwise would convert an appeal process into an instrument of oppression.
[12]	It is material to take into account that the corporate applicant was convicted of an offence against s 28(2)(a) of the Agents’ Financial Administration Act 2014.  The offence was constituted by the retention of the moneys which are the subject of the present proceeding and arose out of the same facts.  An appeal to the District Court was dismissed and an application for leave to appeal to the Court of Appeal was refused.
[13]	Consequently, in this case the applicants have had the benefit of a consideration of the same facts on four different occasions.  They now seek to re-agitate the affair all over again.
[14]	For these reasons, the application for leave to appeal should be refused.  I order that the applicants’ pay the respondents’ costs of and incidental to the application on the standard basis.