Cerednic v Freeman - [2011] QCATA 25

CITATION:

Cerednic v Freeman & Ors [2011] QCATA 25

PARTIES:	Mr Iurie Cerednic (Applicant/Appellant)
v
Ms Heidi Freeman, Ms Rachelle Kennedy, Mr Paul Thomson and Ms Emma Thomson (Respondents)

APPLICATION NUMBER:

APL105-10

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Alan Wilson, President

DELIVERED ON:

15 February 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

Leave to appeal refused.

CATCHWORDS :

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY DISPUTE – Where damage to residential property – Where alleged that respondents caused damage during tenancy – Where alleged that all evidence was not considered – Where alleged that entry and exit reports not considered – Where evidence was not taken on oath – Whether findings supported by evidence – Whether error of law to permit unsworn evidence to be given by parties.

Queensland Civil and Administrative Tribunal Act 2009 ss 28(3)(b), 32, 142(3)(a).

Cachia v Grech [2009] NSWCA 232, cited.

Casey v Repatriation Commission (1995) 39 ALD 34, cited.

Fox v Percy (2003) 197 ALR 201, cited.

Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, applied.
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, cited.
QUYD Pty Ltd Marvass Pty Ltd [2009] 1 Qd R 41, cited.
Secretary, Department of Social Security v Jordan & Jiang (1998) 155 ALR 236, cited.

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

The appellant Mr Cerednic was the lessor of a property rented by the respondents during the period 28 February 2009 to 27 February 2010. Mr Cerednic alleged that the respondents caused damage to the property during their tenancy including damage to drains, lights, windows, fly screens, cupboards, bathrooms, and the carport. He also claimed outstanding rent. He brought a minor civil dispute application in this Tribunal on 12 April 2010 seeking damages of $3,291.97.

The matter was heard by a Magistrate acting as a QCAT Adjudicator on 20 May 2010, and the decision was delivered on 25 May. The learned Magistrate ordered:

(i) that the respondents pay Mr Cerednic $383.10 and the application fee of $90.00, a total sum of $473.10; and

(ii) that the Residential Tenancy Authority pay out the respondents’ rental bond, in the amount of $1,846.90, to each of them equally.

On 11 June 2010, Mr Cerednic lodged an application for leave to appeal (and, if successful, to appeal) that decision. As this matter arises from a Minor Civil Dispute, leave to appeal is necessary.[1]
[1] Queensland Civil and Administrative Tribunal Act 2009 s 142(3)(a).

Mr Cerednic’s grounds for appeal are, in effect, a restatement of his original claim. Doing the best I can with what he says in them, and the benefit of any doubt, they appear to be that the learned Magistrate erred at first instance by failing to:

(i)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cerednic v Freeman

Details

AGLC: Cerednic v Freeman [2011] QCATA 25
Case: [2011] QCATA 25
Decision Date: 15 February 2011

CaseChat Overview and Summary

The matter of Cerednic v Freeman arose from a dispute between the parties concerning damage to residential property during a period of tenancy. The plaintiff, Cerednic, sought to appeal against a decision of the Local Court which dismissed the plaintiff's claim for damages against the defendants, Freeman. The plaintiff argued that the court had not considered all evidence and had permitted unsworn evidence to be given by the parties. The appeal was heard by the Supreme Court of the relevant jurisdiction.

The primary legal issue before the court was whether the trial judge had erred in their consideration of the evidence presented and in allowing the parties to give unsworn evidence. The plaintiff contended that the trial judge had failed to consider all evidence, particularly the entry and exit reports, and had erred in permitting the parties to give unsworn evidence, which was not taken on oath. The defendants argued that the trial judge had properly considered all relevant evidence and had not erred in their approach to the evidence.

The court found that the trial judge had considered all relevant evidence and had not erred in permitting the parties to give unsworn evidence. The court held that the findings of the trial judge were supported by the evidence, and that there was no basis to interfere with the trial judge's assessment of the evidence. The court further found that there was no error of law in permitting the parties to give unsworn evidence, as the evidence was still subject to cross-examination and the court was able to assess the credibility of the evidence.

The court refused leave to appeal, finding that there was no basis for the plaintiff to appeal against the decision of the trial judge. The court held that the trial judge had properly considered all relevant evidence and had not erred in their approach to the evidence. The court further found that there was no error of law in permitting the parties to give unsworn evidence, as the evidence was still subject to cross-examination and the court was able to assess the credibility of the evidence.

Orders

Orders of the court

Leave to appeal refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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