Cong v Awad

Case [2021] QCATA 25

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Cong v Awad [2021] QCATA 25

PARTIES:

DAN CONG
(appellant)

v

KATHERIN AWAD

BISHOY AWAD

(respondents)

APPLICATION NO/S:

APL102-20

ORIGINATING APPLICATION NO/S:

MCDT 1401-19

MATTER TYPE:

Appeals

DELIVERED ON:

16 February 2021

HEARING DATE:

8 February 2021

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

1.     The application for miscellaneous matters filed by the appellant on 6 August 2020 is refused.

2.     The application for miscellaneous matters filed by the respondents on 8 September 2020 is dismissed.

3.     Leave to appeal is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – CONTROL OVER PROCEEDINGS – OTHER CASES –- where bare allegation of bias – where applicant was given opportunity to present case and rebut respondent’s case – where appellant had obligation to prove its case

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – interference with findings of Tribunal below – functions of appellate tribunal – where no valid ground of appeal raised – where Tribunal has mandate to deal with matters quickly – where findings open on evidence – where no reasonably arguable case of Tribunal in error – where no reasonable prospect of substantive relief on appeal

LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – OBLIGATIONS, PROHIBITED MATTERS AND PROTECTION FOR LESSEES – RENT - where landlord claimed compensation – where tenants claimed compensation – where findings of fact about water efficiency, fair wear and tear and condition of property based on evidence adduced at hearing – where Tribunal has mandate to deal with matters fairly, quickly and economically – where Tribunal will not usually disturb findings of fact on appeal – where findings open on the evidence – where appeal is not opportunity for party to reargue their case - where ground of appeal dismissed

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where strong indicator against awarding of costs – where nothing to displace usual position that each party must pay own costs

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 28, s 100, s 102

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 166, s 169

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Armstrong v Kawana Island Retirement Village [2011] QCATA 324
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Bradlyn Nominees v Saikovski [2012] QCATA 39
Cachia v Grech [2009] NSWCA 232
Chambers v Jobling (1986) 7 NSWLR 1
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
Coulton v Holcombe (1986) 162 CLR 1
Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226
Dearman v Dearman (1908) 7 CLR 549
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Fox v Percy (2003) 214 CLR 118
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
House v The King (1936) 55 CLR 499
King…

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Details
AGLC
Cong v Awad [2021] QCATA 25
Case
[2021] QCATA 25
Decision Date

CaseChat Overview and Summary

In the case of Cong v Awad, the appellant, Dan Cong, sought to appeal the decision of an Adjudicator who awarded her rent arrears and dismissed her claim for compensation against her former tenants, Bishoy Awad and Katherin Awad. The dispute centred around the allocation of compensation for damages to the property and the awarding of rent arrears. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT). The central legal issues revolved around whether the appeal was an opportunity to reargue the case, the acceptance of fresh evidence, and the grounds for granting leave to appeal. The court examined whether the appellant’s grounds for appeal aligned with the Tribunal's mandate to conduct proceedings fairly, justly, economically, informally, and quickly, and whether the appeal was being used to re-litigate the case rather than correct any errors made by the Tribunal.

The court held that an appeal is not an opportunity for a party to reargue their case or present new evidence. Instead, it is a means to correct an error by the Tribunal. The appellant's application for leave to appeal focused on the Adjudicator's findings of fact and attempted to rely on undated photographs as "fresh evidence." The court rejected this approach, emphasising that the appeal process is not an avenue for parties to present their case again. The appeal tribunal only accepts fresh evidence if it was not reasonably available at the time of the original hearing and meets specific criteria. The court found that the appellant had not satisfied these criteria and that the appeal was essentially an attempt to reargue the case rather than address any errors in the original decision.

The Appeal Tribunal concluded that the appellant's application for leave to appeal did not meet the requirements for leave and was an attempt to re-litigate the case. The court found that the findings of fact were open on the evidence and that there was no reasonable prospect of substantive relief on appeal. Therefore, the application for leave to appeal was refused, and the appeal was dismissed.

ORDERS:
1. The application for miscellaneous matters filed by the appellant on 6 August 2020 is refused.
2. The application for miscellaneous matters filed by the respondents on 8 September 2020 is dismissed.
3. Leave to appeal is refused.

Orders

Orders of the court

1. The application for miscellaneous matters filed by the appellant on 6 August 2020 is refused.

2. The application for miscellaneous matters filed by the respondents on 8 September 2020 is dismissed.

3. Leave to appeal is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

It is within this context that an Adjudicator awarded Dan Cong rent arrears and dismissed her claim for compensation against her former tenants, Bishoy Awad and Katherin Awad. Ms Cong’s grounds of appeal about the learned Adjudicator not making certain findings, not referring to all the evidence, not providing reasons for not accepting evidence favourable to her own case together with a bare allegation of bias do not align with the Tribunal’s mandate to conduct proceedings in a way that is fair, just, economical, informal and quick,[11] or with established principle.[12] [11]QCAT Act, s 3(b).[12]King v ASIC [2018] QCA 352, citing with approval Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430.Were the findings open on the evidence? An application for leave to appeal is not, and should not be, an attempt to reargue a party’s case at the initial hearing.[13] A clear purpose of the requirement for leave, before a party has the right to appeal, is to prevent any attempt to simply conduct a retrial on the merits of the case.[14] Leave will not be granted where a party seeks to re-argue the case on existing or additional evidence.[15] [13]Bradlyn Nominees v Saikovski [2012] QCATA 39.[14]Ibid.[15]Piric & Anor v Claudia Tiller Holdings Pty Ltd [2012] QCATA 152, [12] (Wilson J). Despite this, Ms Cong’s application for leave to appeal focused on the learned Adjudicator’s findings of fact and sought to rely on now dated photographs that were undated at the original hearing, as “fresh evidence”.[16] The appeal process is not an opportunity for a party to again present their case.[17] It is the means to correct an error by the Tribunal that decided the proceeding.[18] [16]Application for miscellaneous matters filed 6 August 2020.[17]Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39, [9].[18]Ibid. The Appeal 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 fresh evidence must satisfy three tests:[19] (a)Could the parties have obtained the evidence with reasonable diligence for use at the trial? (b)If allowed, would the evidence probably have an important impact on the result of the case? (c)Is the evidence credible?[19]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408. A party who provides deficient evidence at the original hearing cannot expect a different outcome by resubmitting it in another form to “shore up their case”. All parties have an obligation to act in their own best interests:[20]The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, “… the public as a whole, not merely the parties to the proceedings”. Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.[20]Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226, [13], citing with approval Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217 (citations omitted).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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