Ascend Holdings Pty Ltd ATF Ascend Family Trust v Hellings

[2012] QCATA 19

CITATION: Ascend Holdings Pty Ltd ATF Ascend Family Trust v Hellings [2012] QCATA 19

PARTIES:	Ascend Holdings Pty Ltd ATF Ascend Family Trust (Applicant/Appellant)
v
Charlotte Hellings (Respondent)

APPLICATION NUMBER: APL269-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Judge Fleur Kingham, Deputy President

DELIVERED ON: 14 February 2012

DELIVERED AT: Brisbane

ORDERS MADE:

1.    Leave to appeal is refused.

2.    Decision of the Magistrate in MCD Cairns 345/11 made on 25 July 2011 is corrected by deleting the figure $1,745.00 from the final order and inserting the sum of $2,005.00.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – ERROR OF LAW – whether the Magistrate failed to consider relevant evidence

APPEAL – FRESH EVIDENCE – where leave to lead fresh evidence was not sought – whether fresh evidence may be adduced – whether evidence reasonably available at first instance

APPEAL – CORRECTION OF MATERIAL MISCALCULATION – where orders of the Magistrate itemised amounts payable to Respondent – where the final order did not accord with the items allowed – where miscalculation corrected on appeal

Queensland Civil and Administrative Tribunal Act2009, ss 32, 135(1)(c), 143(3)(a)(i)

Council of the City of Wollongong v Cowan (1955) 93 CLR 435
Fox v Percy (2003) 214 CLR 118

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. Ascend Holdings Pty Ltd is agent for the owner of a rental property at Clifton Beach in far North Queensland.  It brought an application against the tenant, Ms Hellings, in the Minor Civil Dispute jurisdiction of QCAT.  Ascend applied for $3,750 for rent, forfeiture of the bond and repairs.  Ms Hellings made a counter application for $4,380 for damage to property and compensation for improvements to the property and for being required to vacate the premises at short notice.

1. A Magistrate (sitting in his capacity as a Member of QCAT), dismissed Ascend’s application and awarded Ms Hellings $1,745, less the bond of $880, which left a sum of $865 to be paid by the owner.  The learned Magistrate itemised the components of the damages and compensation award, but incorrectly stated the total amount.  It is clear that he intended to award a total of $2,005 which, after accounting for the bond refund, left a balance of $1,205.  That is a miscalculation that can be corrected by the Tribunal.[1]

   [1]        Queensland Civil and Administrative Tribunal Act 2009, s 135(1)(c).

1. Ascend has applied for leave to appeal the decision.[2]  Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; 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.  Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?

   [2]            Queensland Civil and Administrative Tribunal Act 2009, s 143(3)(a)(i).

1. The only issue raised by Ascend that might justify leave is its assertion that the learned Magistrate failed to consider evidence about the damage to the property.  If that is made out, that would constitute an error of law.

1. However, Ascend has not made out that claim.  It is not necessary, or feasible, for a Member sitting in the busy Minor Civil Dispute jurisdiction to state at the conclusion of an abbreviated hearing what view they have taken of each item of evidence led by the parties.

1. The transcript of the hearing reveals the learned Magistrate did properly turn his mind to the issue and to the evidence.  He made specific reference to the entry condition report and the evidence given about the state of the property.  He clearly stated that he accepted the evidence of Ms Hellings about the state of disrepair to the property.

1. My sole duty is to determine whether there is an error in the primary decision.  It is not my task to decide where the truth lay as between the competing versions given by the parties.[3]

   [3]        Fox v Percy (2003) 214 CLR 118 at 129 per Gleeson CJ, Gummow and Kirby JJ.

1. Ascend also argued an affidavit by Ms Czingler in support of Ms Helling’s counter-application was false.  Ascend did not explain in what way it was false or the ground for that assertion.  The learned Magistrate did not specifically refer to the affidavit but it is reasonable to assume that it formed part of the bundle of material that he considered.  It is not clear what weight he gave it, if any.  The Appeal Tribunal will not grant leave to appeal on a bald assertion of falsehood.

1. Ascend provided further material with its submissions, without seeking leave to lead further evidence on appeal.  QCAT may grant leave on established principles: the evidence was not reasonably available at the hearing; and, had it been, an opposite result was likely; and the new evidence is credible.[4]

   [4]        Council of the City of Wollongong v Cowan (1955) 93 CLR 435.

1. Ascend has not explained why it did not lead the evidence at the hearing.  The photographs and the affidavits do not suggest the evidence was not then available.  An appeal is not an opportunity for a party to re-run its case.

1. Ascend has not made out an arguable case of error by the learned Magistrate.  Its application for leave to appeal is dismissed.  The decision in MCD Cairns 345/11 on 25 July 2011 is corrected by deleting the figure $1,745 and inserting in its stead the figure $2,005.