City Group Realty v Glover

[2014] QCATA 141

CITATION: City Group Realty v Glover [2014] QCATA 141

PARTIES:	Shelly McGinty t/as City Group Realty (Applicant/Appellant)
v
Angela Glover (Respondent)

APPLICATION NUMBER: APL489-13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Stilgoe, OAM

DELIVERED ON: 16 June 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.    Leave to appeal refused

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where claim for loss of rent – where ledger not produced at hearing – where ledger produced to appeals tribunal – where claim for post tenancy rent refused – 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. Ms Glover rented a property through Shelly McGinty t/as City Group Realty.  When the tenancy terminated, Ms McGinty made a claim for compensation for unpaid rent and repair and cleaning costs.  From a claim of $4,474.12, the tribunal allowed $1,846.40.

2. Ms McGinty wants to appeal that decision on the grounds that she can now demonstrate an entitlement to additional compensation.

1. 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].

1. Ms McGinty has filed a copy of a rental ledger that was not available at the initial hearing[2].  She also filed a copy of the new tenancy agreement, showing when the property was re-let after Ms Glover vacated.

   [2]Transcript page 1-20, lines 41-42.

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 Ms McGinty 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. An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party’s case at the initial hearing. Ms McGinty has not explained why the ledger was not available at the hearing. It is a basic requirement for a claim for rental arrears. That evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Adjudicator.

1. Ms McGinty claimed three weeks loss of rent as the time required to rectify the premises. The learned Adjudicator allowed one week rent as compensation.  Ms McGinty has filed a copy the new tenancy agreement on the assumption that Ms Glover had to pay rent until there was a new tenant.  That assumption is incorrect.  Ms Glover’s tenancy expired on 5 August 2013.  She vacated on that date.  Her obligation to pay rent expired on that date.  The fresh evidence will not have an important impact on the result of the case.  It should not be admitted.

1. Ms McGinty does not assert that the learned Adjudicator was in error. Rather, she wanted to produce material to the appeals tribunal that she did not produce at the hearing.  She wants to provide a copy of a ledger that the learned Adjudicator called for, but she did not produce.  That is not the function of an application for leave to appeal.  There is no reasonably arguable case that the learned Adjudicator was in error.  Leave to appeal should be refused.