Dimovski v Southport Realtor Pty Ltd t/a Shores Realty

[2014] QCATA 276

CITATION: Dimovski v Southport Realtor Pty Ltd t/a Shores Realty [2014] QCATA 276

PARTIES:	Mile Dimovski (Appellant)
v
Southport Realtor Pty Ltd t/a Shores Realty (Respondent)

APPLICATION NUMBER: APL312-14

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Acting Senior Member Paratz

DELIVERED ON: 23 September 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.    Leave to appeal refused

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – whether grounds for leave to appeal – where a lessor claimed moneys for cleaning and repairs to rental unit – where the appellant alleged that he did not have a proper opportunity to present his case – where it was held that the appellant was given a fair and adequate opportunity to present his case

Pickering v McArthur [2005] QCA 294

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. Mr Dimovski rented a unit at Surfers Paradise. Upon his leaving it, the real estate agency, Southport Realtor Pty Ltd t/a Shores Realty (Shores) had cleaning and repairs done. Shores filed an application in the Tribunal seeking an amount of $5,000 for various items.

2. The Tribunal, comprised of two Justices of the Peace, sitting at Southport, heard the matter on 24 June 2014. Mr Dimovski, and a representative of Shores gave evidence. The Tribunal ordered that Mr Dimovski pay a total of $3,677.50 being made up of the bond of $1,600 plus an additional $2,077.50.

3. The hearing commenced at 1.29pm and evidence and submissions were given until 3.13pm. The Tribunal adjourned for about half an hour to consider its decision, and the hearing concluded at 3.46pm.

4. Mr Dimovski filed an Application for leave to appeal or appeal on 21 July 2014. His grounds of appeal were as follows:-

   The Tribunal didn’t give me time to put forth my closing statement, the explanation given to me was they said that they had a case after mine and that if I had no new evidence to bring forth it was irrelevant. As a Applicant of the hearing I believe I had enough proven evidence in my closing statement to prove to the Tribunal the is claims of misleading and stacked up evidence.

   (The grounds then go on to give examples.)

5. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually only 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.[2]

   [1]QCAT Act s 142(3)(a)(i).

   [2]Pickering v McArthur [2005] QCA 294 at [3].

6. Both parties made submissions on the application for leave to appeal or appeal.

7. Mr Dimovski filed a 5 page Affidavit, together with 18 pages of supporting documents. He repeats the arguments he raised on the hearing. He takes issue with the arguments of Shores. He concludes by saying that he hopes the Appeal Tribunal[3]:-

   will take attention on the matters above and support documents to give me an opportunity to defend the unfair and stacked up claims against me

   [3]Submissions Mr Dimovski filed 15 August 2014 p 5.

1. Shores submit that Mr Dimovski does not present any new evidence except for two letters which could have been presented at the hearing, but which have no bearing on the outcome. They argue that Mr Dimovski is just not happy with the decision.

1. I have read the Transcript and the submissions of both parties.

1. The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[4]  An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[5] 

   [4]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125 – 126.

   [5]Chambers v Jobling (1986) 7 NSWLR 1 at 10.

1. Mr Dimovski has referred to two letters, which Shores say are not of significance. These appear to be letters sent by Mr Dimovski himself to Meriton Apartments on 20 January 2009, and to Shores on 17 February 2014. As such, they are self-serving as evidence, and would be of limited weight unless the issue or content of them was in dispute, and they could be seen as corroborative on those aspects.

1. The purpose of an appeal is to examine the proceedings of the hearing to assess whether an error of law or fact, or both, has been made, such that the original decision should not stand.

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 the applicant 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?[6]

   [6]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. Mr Dimovski has not provided any explanation as to why this material was not available earlier, or to show how it is of specific relevance or weight. That evidence should not be admitted, and the application for leave to appeal must proceed on the basis of the evidence before the Tribunal initially.

1. The Tribunal heard evidence from both parties. There is frequent reference in the Transcript to the need for the matter to proceed. The minor civil disputes jurisdiction is a busy one, and the time taken by this matter was lengthy in that context.

1. The presentation by Mr Dimovski at the hearing was repetitive, and this added to the length of the proceedings. He said that his English is not good, but I am satisfied that nevertheless he understood the proceedings and was able to properly present his whole case.

1. The Tribunal checked with Mr Dimovski, after the conclusion of Shore’s case, and after Mr Dimovski had commented on it, that he had no new matters to raise before they made their decision[7]:-

   [7]Transcript p 1-46 Line 35.

Beyers JP: Okay. All right. Well, look, thank you for that..

Mr Dimovski: You know…

Beyers JP:.. Mr Dimovski. Now, I – I’m aware of the fact that we are running way over time, but it’s the – the applicant needs to – sorry. You are the applicant, aren’t you?

Mr Dimovski: Yes

Beyers JP: And – now, you – I – I would take that, the, that is – you – you’ve really rehashed what you’ve said before. There’d be nothing else, I should imagine, that you could say that is new to this issue?

Mr Dimovski: No. I’d..

Beyers JP: You’re happy for us to make our decision on what you’ve provided.

1. There is nothing in the transcript that persuades me that the Tribunal should have taken a different view of the facts, or that Mr Dimovski was not given a fair and adequate opening to present his case.

1. There is no reasonably arguable case that the Tribunal was in error. Leave to appeal should be, and is, refused.