Cameron v Moutzouras

[2015] QCATA 102

CITATION: Cameron v Moutzouras [2015] QCATA 102

PARTIES:	Felicity Jane Cameron (Applicant/Appellant)
v
Con Moutzouras Maria Moutzouras (Respondents)

APPLICATION NUMBER: APL105-15

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Stilgoe OAM

DELIVERED ON: 13 July 2015

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The leave to appeal is granted.

2.    The appeal is allowed.

3.    The decision of 11 March 2015 is set aside.

4.    The parties may file and serve submissions as to the further conduct of the proceeding by 20 July 2015.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where application to terminate for repeated breaches – where tenant did not attend hearing – where fresh evidence - where tenant did not attend hearing because of representations by lessor’s agent – whether grounds for leave to appeal

Pickering v McArthur [2005] QCA 294
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404

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

1. Felicity Cameron was behind in her rent. Con and Maria Moutzouras, through their agent That’s Property, issued three Forms 11; on 8 December 2014, 22 December 2014 and 5 January 2015. Ms Cameron was still behind in her rent so Mr and Ms Moutzouras filed an application to terminate the tenancy for repeated breaches under s 299 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act). Ms Cameron did not attend the hearing. The tribunal did terminate the tenancy and issued a warrant of possession.

2. Ms Cameron wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] 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.[2]

   [1]QCAT Act s 142(3)(a)(i).

   [2]Pickering v McArthur [2005] QCA 294 at [3].

3. Ms Cameron filed fresh evidence with her application for leave to appeal. She filed a copy of a payment plan agreement dated 6 February 2015, a copy of her bank statement and a letter from That’s Property dated 25 February 2015 enclosing a Form 12 notice to leave without grounds.

1. 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 the parties 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?[3]

   [3]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.

1. Ms Cameron submits that she did not attend the hearing because, when she received the notice of hearing, she contacted That’s Property. She submits that she was told she would not have to attend the hearing if she complied with the repayment plan, She submits that she was told the proceeding would be re-listed if she did not comply with the repayment plan. She submits that, when she received the notice to leave without grounds, she contacted That’s Property to see if she could leave early. She submits that she was told she had to stay until the end of the lease.

1. If Ms Cameron is to be believed, then she has explained why she did not present this evidence at the hearing. The evidence will have an important impact on the result of the case. The question for me, then, is whether the evidence is credible.

1. By a decision dated 17 March 2015, I directed the parties to file submissions about Ms Cameron’s application to stay a decision. Mr and Ms Moutzouras filed no material. I granted the stay on 26 March 2015. By a decision dated 30 March 2015, I directed the parties to file submissions on the application for leave to appeal. Mr and Ms Moutzouras filed no material. Ms Cameron’s submissions stand uncontradicted. I am, therefore, entitled to assume that her version of events is correct. The evidence should be admitted.

1. Ms Cameron’s fresh evidence shows that the case as presented to the tribunal at first instance was not the whole story. Although Ms Cameron had breached her tenancy agreement within the meaning of s 299 of the RTRA Act, if all of the facts had been known, the tribunal may have refused to exercise its discretion and order a termination of the tenancy. Leave to appeal should be granted, the appeal allowed, and the decision of 11 March 2015 set aside.

1. The notice to leave without grounds has now expired. I do not know whether Ms Cameron remains in the property. There is little point in returning this proceeding to the tribunal for rehearing if Ms Cameron is no longer in residence. I therefore direct that the parties file and serve submissions by 20 July 2015 as to the future conduct of the proceeding.