Ferizis v b accommodated
[2013] QCATA 138
•3 May 2013
| CITATION: | Ferizis v b accommodated [2013] QCATA 138 |
| PARTIES: | Mr George Ferizis (Applicant/Appellant) |
| v | |
| b accommodated (Respondent) |
| APPLICATION NUMBER: | APL450-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 3 May 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | MINOR CIVIL DISPUTE – whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549 Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
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 (QCAT Act).
REASONS FOR DECISION
b accommodated managed Mr Ferizis’ Gold Coast holiday unit throughout 2010. Mr Ferizis appointed b accommodated because he was unhappy with the returns from his previous agents. He did not get the returns he expected from b accommodated either.
When he stayed in his unit at Christmas 2010, Mr Ferizis formed the view that b accommodated had not fulfilled its duties under the management agreement. In his view, the unit was dirty and poorly maintained. He filed a claim for in excess of $20,000. The Tribunal dismissed his claim.
Mr Ferizis wants to appeal that decision. He says that the learned Adjudicator did not consider the effect of clauses 6.5, 6.8 and 6.9 of the management agreement. He says that the learned Adjudicator erred in his findings about unauthorised cleaning, whether b accommodated failed to inspect and maintain the unit, and whether b accommodated failed to carry out repairs and cleaning. He says that the learned Adjudicator erred in finding that Mr Ferizis’ lawyer calculated the claim of $2,227. Finally, he says that the learned Adjudicator erred in not considering the effect of the Commitment/Endorsement brochure.
Because this is an appeal from a decision of the Tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the Appeals Tribunal, would be to the public advantage?[4]
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at 2.
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
The Appeals Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[5] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[6] As the High Court said in Fox v Percy:
In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.[7]
[5]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[6] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[7] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
Clauses 6.5, 6.8 and 6.9 of the management agreement set out the scope of b accommodated’s authority. The $300 limit in clause 6.5 relates to repairs and replacements. Cleaning is separately referenced. There was no evidence before the learned Adjudicator that b accommodated had breached clause 6.5.
Clauses 6.8 and 6.9 gives b accommodated authority; it does not impose an obligation. The learned Adjudicator considered whether b accommodated had complied with its obligations under the management agreement and found that it had. The evidence can support his findings and I can find no reason to come to a different view.
The management agreement allows b accommodated to charge for cleaning. b accommodated told the learned Adjudicator that there had been a number of holiday lets and the unit was cleaned after each tenancy. Mr Ferizis did not deny that there had been holiday lets. b accommodated must have cleaned the unit between lets. There is no substance to Mr Ferizis’ argument.
The learned Adjudicator did note that the photos indicated the unit could “do with a good clean”.[8] However, Mr Ferizis did not explain why, when he found the unit in a poor condition, he did not bring that the b accommodated’s attention.[9] The learned Adjudicator found[10] that he had no particular information about the state of the unit. He did not consider that b accommodated should be liable “simply because some repairs had to be carried out and some cleaning had to be done”.[11] The evidence can support the learned Adjudicator’s findings and I can find no reason to come to a different view.
[8] Transcript page 40, line 15, 16.
[9] Transcript page 25, lines 45, 46; page 26, lines 1, 2.
[10] Transcript page 40, lines 9-11.
[11] Transcript page 40, lines 19 -23.
Mr Ferizis’ submission about the claim for $2,227 is plainly wrong. The learned Adjudicator asked Mr Ferizis how he calculated that amount. Mr Ferizis replied, “I believe the solicitor, sir, completed the claim… That is the angle the solicitor was looking at”.[12]
[12] Transcript page 27, lines 13-17.
The learned Adjudicator did not expressly refer to the Commitment/Endorsement brochure in his reasons for decision. However, he found that the terms of the management agreement were clear and that b accommodated made no representation or guarantee about the possible return. The evidence can support the learned Adjudicator’s findings and I can find no reason to come to a different view.
There is no question of general importance that should be determined by the Appeals Tribunal. There is no reasonably arguable case that the learned Adjudicator was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.
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