Gapes v White
[2014] QCATA 335
•2 December 2014
| CITATION: | Gapes v White [2014] QCATA 335 |
| PARTIES: | Sonya Lesley Gapes (Applicant/Appellant) |
| v | |
| Colin Anthony White (Respondent) |
| APPLICATION NUMBER: | APL400 -14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM |
| DELIVERED ON: | 2 December 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE –where agreement to lease grazing property – where rent not paid – where tenant claimed lessor involved in disappearance of stock - whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549 |
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
Ms Gapes leased a grazing property from Mr White. Rent of $6,500 per month was payable three months in advance. Ms Gapes was also responsible for the costs of power and telephone to the property.
The property was in drought during the summer of 2013/14. Ms Gapes’ cattle were going missing and she was involved in protracted family Court proceedings. She found it hard to make ends meet. She did not pay her rent for December, January and February. She did not pay the September electricity bill.
The lease expired on 28 February. Ms Gapes did not vacate the property until 21 March 2014.
Mr White filed a claim for unpaid rent, electricity and agistment costs for the 21 days in March when Ms Gapes stayed on the property. A Judicial Registrar, sitting in the minor civil disputes jurisdiction of the tribunal, found in favour of Mr White and ordered that Ms Gapes pay him $23,245.28.
Ms Gapes wants to appeal that decision. She says Mr White misled the learned Registrar. She says the learned Registrar erred in not considering her financial position, because she cannot afford to pay the rent. She says that the rent should be offset by the value of 350 missing head of cattle, in which she believes Mr White played a part. She says the learned Registrar should have considered the parties’ dispute over the use of a cattle brand, as this dispute was affecting Ms Gapes’ ability to pay the rent.
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 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].
In the submissions to both the learned Registrar and the appeal tribunal, Ms Gapes takes some time and effort to set out her family Court difficulties, her complaints about the legal system, her disputes with lawyers and her perception that Mr White lied to her and bullied her.
None of these is relevant to the issue before the learned Registrar, which was whether or not Ms Gapes should pay rent that she had agreed, in writing, to pay. I note that Ms Gapes admitted that she owed Mr White rent of ‘just over $20,000’[3].
[3]Transcript page 1-4, lines 13 – 15; 19 – 24.
The learned Registrar was right to disregard Ms Gapes’ financial position when deciding the dispute. The learned Registrar was tasked with applying the law to determine whether Ms Gapes should pay rent. Whether Ms Gapes could pay rent is an entirely different question and not one that can influence the tribunal’s decision.
Ms Gapes says she has a counter claim for over $300,000 for missing cattle. She applied for an adjournment of the hearing so that the missing cattle could be sorted out.
The learned Registrar refused the adjournment. She pointed out that this was not a matter within the tribunal’s jurisdiction[4]. Mr White pointed out that Ms Gapes could issue a separate claim for the missing cattle[5]. The learned Registrar did not err in deciding the claim before her, given that Ms Gapes did not lose any of her legal rights.
[4]Transcript page 1-4, lines 38 – 40.
[5]Transcript page 1-3, lines 16 – 19.
The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[6] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[7]
[6]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[7]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
Ms Gapes submits that Mr White was not truthful in his evidence before the tribunal. I have read the transcript carefully. The evidence can support the learned Registrar’s findings. There is nothing in the transcript that support Ms Gapes’ submissions that her submission that Mr White was untruthful apart from her own assertions. There is no compelling reason to set aside the learned Registrar’s findings of fact.
Before a court or tribunal can offset the value of the missing cattle, Ms Gapes has to prove a number of facts. She has to prove ownership. She has to prove Mr White was involved in their disappearance. She has to prove the value of the cattle. Ms Gapes wanted the tribunal to ‘assist in locating the missing cattle’[8]. That is not the role of the tribunal; Ms Gapes has the onus of gathering evidence to prove any claim she might bring to the tribunal or a court.
[8]Response filed 21 May 2014.
The same considerations apply to Ms Gapes’ claim that the dispute over the brand affected her ability to pay the rent. It is not an issue that the tribunal could decide, and there was no evidence before the learned Registrar in any event.
There is nothing in the transcript that persuades me that the learned Registrar should have taken a different view of the facts. There is no reasonably arguable case that the learned Registrar was in error. Leave to appeal should be refused.
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