Dasa v Vu

[2011] QCATA 54

CITATION:		Dasa v Vu [2011] QCATA 54
PARTIES:	Deepa Dasa (Application/appellant)
v
Joseph Vu (Respondent)

APPLICATION NUMBER:   APL151-10

MATTER TYPE: Appeals

HEARING DATE:     On the papers

HEARD AT:  Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON: 18 March 2011

DELIVERED AT:      Brisbane

ORDERS MADE: Application for leave to appeal refused.

CATCHWORDS: 

APPEAL – LEAVE TO APPEAL – where tenancy of shop premises at Kuranda – where shop was being used as a café – where the café had an attached cold room – where cold room required repair – where proceedings brought seeking compensation and an order that the cold room be repaired – where proceedings at first instance were dismissed – whether there was an error of law or fact in the decision of the Tribunal at first instance

Queensland Civil and Administrative Tribunal Act 2009, s 142

APPEARANCES and REPRESENTATION (if any):

The application for leave to appeal was, by order, heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. This application for leave to appeal (and the appeal if leave is granted) arises out of Ms Dasa’s former tenancy of shop premises at Kuranda.  Mr Vu was the landlord.

2. The premises consisted of a café with an attached cold room and the proceedings which led to the appeal concerned failures in the operation of that cold room.  In 2009 Ms Dasa commenced proceedings in the former Retail Shop Leases Tribunal, absorbed into QCAT after 1 December 2009.  In those proceedings Ms Dasa sought orders that Mr Vu repair the cold room and pay her compensation for her allegedly lost income over some months.

3. The matter came on to hearing before a QCAT Tribunal in Cairns on 9 June 2010 at which Ms Dasa and Mr Vu appeared on their own behalves.

4. As the transcript of that hearing shows, both parties were offered every opportunity to present evidence in the form of witnesses or documents, and to make submissions.  The experienced presiding Member also took care, the transcript shows, to explain to each party how she or he should present their case and the evidence they should adduce to support it.

5. At the end of the hearing the presiding Member dismissed Ms Dasa’s application and ordered that she pay Mr Vu arrears of rent of $6,543.54 within 30 days.  As the reasons show, the Tribunal concluded that although the cold room did break down, the landlord made reasonable attempts to repair it and, in particular, offered the tenant the use of a refrigerator when the cold room was inoperative.  The Tribunal then found that Ms Dasa rejected that offer and, thereby, failed to mitigate her own loses.  Further, despite earlier directions in the proceedings requiring that Ms Dasa produce documents relevant to her claim for business loses – financial statements, tax records and the like – she had failed to do so and the Tribunal was unable to measure any loss she may have suffered, or make any award in her favour.

6. The Tribunal’s reasons are, with respect, both comprehensive and clear.

7. Ms Dasa’s application for leave to appeal alleges that she was ”very sick” on the day of the hearing and that she “… did not get a chance to explain on that day”.[1]  In her submissions to the Appeal Tribunal she says the original decision was “very unfair”.[2]

   [1]        Application for Leave to Appeal or Appeal of 28 July 2010, p 4, Part C.

   [2]        Submissions of Deepa Dasa of 29 August 2010.

8. The transcript of the hearing reveals nothing to suggest Ms Dasa was unwell, or any complaint by her about her health.  Nor, as already observed, is there anything to suggest she was denied the opportunity to present her case as fully as she wished.

9. Under s 142 of the QCAT Act an appeal can only be brought, automatically, on a question of law. If a party wishes to reply upon a question of fact or a question of mixed law and fact, that party must obtain leave to appeal from this Appeal Tribunal. Leave is usually granted only in those cases where this is some apparent error which must be repaired, or it would be in the public interest or to the public advantage to have a decision at the Appeal Tribunal about a particular matter.

[10]  Nothing of that kind can be said about this case.  The transcript shows that Ms Dasa had a fair hearing and, at that hearing and before it the Tribunal had explained to her what she required to prove her case.

[11]  There is no apparent error of law, or fact, in the Tribunal’s decision.  There is no question of law arising in the matter which would attract leave to appeal or which, otherwise, requires a decision of the Appeal Tribunal.  The application for a leave to appeal must be refused.