Andrews v Amos
[2014] QCATA 114
•13 May 2014
| CITATION: | Andrews v Amos [2014] QCATA 114 |
| PARTIES: | Graham Andrews (Applicant/Appellant) |
| V | |
| Benjamin Amos (Respondent) |
| APPLICATION NUMBER: | APL154 -14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 13 May 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – RESIDENTIAL TENANCIES –where no exit condition report – where exit inspection noted no issues – where compensation for damage claimed later claimed – where tribunal dismissed claims for later claims - whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549 |
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).
REASONS FOR DECISION
Mr Amos rented a home from Mr Andrews. On 21 September 2013, at the end of the tenancy, Mr Andrews, his agent and Mr Amos inspected the premises. Mr Andrews told Mr Amos that he was satisfied with the condition of the home.
A couple of weeks later, Mr Andrews stayed at the home overnight. He noticed a stain on the third bedroom carpet. On 3 October 2013, Mr Andrews’ agent sent Mr Amos an email, advising damage to the carpet, water damage to the ensuite vanity and damage to the master bedroom window frame. On 29 October 2013, Mr Andrews’ agent sent details of the costs of rectifying these items plus a claim for water charges.
Mr Amos filed a claim for the return of his bond. Mr Andrews claimed compensation for the damage. Two Justices of the Peace, sitting in the minor civil disputes jurisdiction of the tribunal, ordered that Mr Andrews receive $385.60 compensation from a claim of $1,141.
Mr Andrews wants to appeal that decision. He says that the learned Justices did not decide who should pay the carpet cleaning costs of $550. He says that the learned Justices’ reasons for decision do not explain why they did not compensate him for the carpet or the window frame.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as His Honour then was) in Pickering v McArthur[1]:
There are numerous authorities, in varying language but with unvarying emphasis, that leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.
[1][2005] QCA 294 at [3].
The learned Justices’ reasons for decision do not descend to detail about why they did not allow Mr Andrews’ claims for carpet and window frame damage. They say[2] that the issue of the carpet is not 'really relevant' to their decision. However, they also say[3] that the lack of an exit condition report, the late notification of the damage, and that Mr Amos did not have an opportunity to rectify the damage, were factors in their decision.
[2]Transcript page 1-24, lines 7-10.
[3]Transcript page 1-247, lines 28-33.
In the tribunal’s minor civil disputes jurisdiction, giving immediate oral decisions accords with the spirit and purpose of the QCAT Act. Those decisions will not be exposed to criticism which fails to acknowledge the circumstances in which they are given, or the pressure of the tribunal’s caseload.
Perhaps the learned Justices’ reasons for decision could have been clearer. Perhaps they could have referred to each claim for compensation in their reasons for decision. Perhaps their comment that the carpet issue was not 'really relevant' was misleading. However, the basis of their decision is clear.
The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[4] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[5]
[4]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[5]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
I have read the ‘lengthy discussion’ about the carpet in the transcript. Mr Andrews conceded that he did not see the stain when he inspected the house with his agent and Mr Amos. That is an odd concession when the stain is described elsewhere as ‘a large square orange stain’[6]. There are no photographs of the stain. Mr Andrews’ agent did not give Mr Amos any photographs or any opportunity to inspect or rectify the stain. The learned Justices concluded that Mr Andrews’ claim came too late. The evidence can support that decision and there is nothing in the transcript to persuade me that the learned Justices should have taken a different view of the facts.
[6]See page 4 of the annexure to Mr Amos’ application.
Mr Andrews also relies on Mr Amos’ agreement to pay the costs of the carpet cleaning in an email dated 29 October 2013. That email was not in evidence before the learned Justices. Mr Andrews first filed it in an application for reopening.
The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Mr Andrews have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?[7]
[7]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.
The email predated the hearing. Mr Andrews has not explained why he did not provide a copy at the hearing. Mr Amos points out that the email was an offer to resolve the dispute, which was rejected. The email makes it clear that Mr Amos made the offer reluctantly and without accepting responsibility. The fresh evidence should not be admitted and the appeal should be determined on the material before the learned Justices.
Mr Andrews’ submission about the window frame has the same difficulty as his submission about the carpet. The learned Justices decided to reject the claim because it was not detected in the inspection, the claim was late, and Mr Amos did not have an opportunity to rectify the alleged damage. I can see no compelling reason to come to a different view.
Mr Andrews submits that the appeals tribunal should allow leave to appeal because his agent is pressing for payment of costs incurred on his behalf. As the learned Justices observed[8], that’s an issue between Mr Andrews and his agent.
[8]Transcript page 1-24, lines 23-25.
There is no reasonably arguable case that the learned Justices were in error. Leave to appeal should be refused.
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