Damiano v Bargara Real Estate - [2013] QCATA 233

CITATION:

Damiano v Bargara Real Estate [2013] QCATA 233

PARTIES:	John Damiano Judith Damiano Megan Damiano (Appellants)
V
Bargara Real Estate (Respondent)

APPLICATION NUMBER:

APL153-13

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Hon K Cullinane QC, Judicial Member

DELIVERED ON:

21 August 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal is refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where the Applicants leased premises managed by the Respondent – where the Applicants commenced proceedings in the Tribunal concerning the state of the premises – where the Respondent brought a counter-application for rent arrears – where the Tribunal dismissed the Applicants’ claim and allowed the Respondent’s application – where the Tribunal ordered the payment money from rental bond to the Respondent – where the Applicants seek to appeal that decision – whether leave to appeal should be granted

Queensland Building Services Authority v Macdonald [2012] QCATA 237, cited

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

This is an application for leave to appeal from a decision of the Tribunal delivered on 12 March 2013. The matter is a minor civil dispute and thus under s 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 leave to appeal is necessary.

The Applicants were tenants of certain premises situated at the Esplanade Bargara.

They complained of various matters concerning the state of the premises and the behaviour of the Respondent.

By a counter-claim the Respondent made a claim in relation to rental claimed to be owing.

The Tribunal dismissed the Applicant’s claim and ordered that certain moneys be paid to the Respondent. Some of these were held in the form of bond by the Residential Tenancies Authority.

To obtain leave to appeal it is necessary to show some good reason for the grant of such leave.

In Queensland Building Services Authority v Macdonald [2012] QCATA 237 at [9] the principle was stated:

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.

The outline of argument largely involves a restatement of the various complaints made by the applicants. The Respondent’s outline then took the form of a point by point answer to the Applicant’s outline.

The Tribunal dealt with each of the Applicants’ claims. It found in each case against the Applicants.

The largest claim related to damage to a lounge suite said to have been caused by leaking from an air conditioner. The suite was some six years old. The Respondent fixed the lounge. The claim made related to a time towards the end of…

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.

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Details

Case: [2013] QCATA 233
Decision Date: 21 August 2013

CaseChat Overview and Summary

The applicants in this matter, Damiano, sought to appeal a decision of the Tribunal concerning a dispute with Bargara Real Estate, the respondent, regarding the state of premises they leased from the respondent. The applicants commenced proceedings in the Tribunal alleging that the premises were in an unsatisfactory condition. The respondent brought a counter-application for unpaid rent, which the Tribunal allowed. Consequently, the Tribunal dismissed the applicants’ claim and ordered that the money held in a rental bond be paid to the respondent. The applicants sought to appeal this decision, seeking leave to do so.

The primary legal issue before the court was whether the applicants should be granted leave to appeal the Tribunal’s decision. The applicants argued that the Tribunal erred in dismissing their claim and in ordering the rental bond to be paid to the respondent. The court considered whether the appeal raised a question of law of general public importance or whether there were other compelling reasons to grant leave to appeal. The court had to weigh the merits of the applicants’ appeal against the principle of finality in dispute resolution.

The court held that the applicants failed to demonstrate that the appeal raised a question of law of general public importance or that there were other compelling reasons to grant leave to appeal. The court noted that the applicants’ appeal appeared to be a matter of factual dispute rather than a question of law. The court concluded that the applicants had not provided sufficient grounds to warrant an appeal, and therefore, the application for leave to appeal was refused. The court emphasised the importance of finality in dispute resolution and the need to avoid unnecessary appeals where the outcome is unlikely to differ.

Accordingly, the court refused the applicants leave to appeal the Tribunal’s decision. The order of the Tribunal stands, and the rental bond money is to be paid to the respondent.

Orders

Orders of the court

1. Leave to appeal is 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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