Germanos v Cosgrove - [2013] QCATA 203

CITATION:

Germanos v Cosgrove & Anor [2013] QCATA 203

PARTIES:	Linda Maria Germanos (Applicant/Appellant)
v
Adam Cosgrove (First respondent) and Anna Hochstadt (Second respondent)

APPLICATION NUMBER:

APL129-13

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Alan Wilson, President

DELIVERED ON:

12 July 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Application for leave to appeal filed by Linda Germanos is dismissed.

2. Counter-application filed by Adam Cosgrove and Anna Hochstadt is dismissed.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where applicant entered into a tenancy agreement with the respondents – where notice to remedy breach issued by respondents – where applicant vacated the premises

PRACTICE AND PROCEDURE – ADDITIONAL EVIDENCE – where applicant seeks to rely on additional evidence – whether new evidence reasonably available at original hearing –whether additional evidence should be accepted

Acts Interpretation Act 1954 (Qld), s 14A
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(1), s 142(3)(b), s 147, Schedule 3
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 136

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 48(1)

Cachia v Grech [2009] NSWCA 232, cited
Clarke v Japan Machines (Australia) Pty Ltd [1994] 1 Qd R 404, applied
Dearman v Dearman (1908) 7 CLR 549, cited
Fox v Percy (2003) 214 CLR 118, cited
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, cited
Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, cited
Marshall v Director General, Department of Transport (2001) 205 CLR 603, cited
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41, cited

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.

REASONS FOR DECISION

Linda Germanos entered into a General Tenancy Agreement with Adam Cosgrove for residential premises at Mountain Creek. The property was managed by Harcourts Mooloolaba and the agreement was for a fixed term between 11 July 2011 and 10 October 2012. During the tenancy Ms Germanos lived with her three children who are listed on the tenancy agreement as ‘approved occupants’.
In May 2012, Mr Cosgrove and his partner, Anna Hochstadt, moved back into a granny flat that was attached to the property Ms Germanos rented. Shortly after this time the parties fell into dispute.
After receiving a Notice to leave from Harcourts, Ms Germanos and her children vacated the property on 10 October 2012.
The Residential Tenancy Authority received a refund of rental bond claim from Ms Germanos on 18 October seeking $1,940.00. A Notice of claim was sent to Harcourts giving it until 6 November to lodge a Dispute resolution request with the RTA. Harcourts did not lodge a request and the RTA released the full bond to Ms Germanos in accordance with s 136 of the Residential Tenancies and Rooming Accommodation Act 2008…

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 203
Decision Date: 12 July 2013

CaseChat Overview and Summary

Linda Germanos, the applicant, appealed against a decision of the Civil and Administrative Tribunal of New South Wales (NCAT) which dismissed her claim against Adam Cosgrove and Anna Hochstadt, the respondents. The applicant had entered into a residential tenancy agreement with the respondents, and subsequently received a notice to remedy breach issued by the respondents. The applicant vacated the premises and subsequently lodged a claim in the NCAT, which was dismissed. The applicant sought leave to appeal against the NCAT decision, while the respondents filed a counter-application seeking dismissal of the appeal.

The legal issues before the court were whether the applicant should be granted leave to appeal the NCAT decision, and whether additional evidence should be accepted by the court. The applicant sought to rely on additional evidence that was not available at the time of the original hearing, and the respondents argued that the evidence should not be accepted as it was reasonably available at the time of the original hearing. The court had to consider the principles of appellate jurisdiction and the circumstances in which additional evidence may be accepted.

The court held that the applicant's application for leave to appeal should be dismissed, as the NCAT had exercised its discretion in making its decision and the appeal did not raise a question of law or jurisdiction. The court also held that the additional evidence sought to be relied on by the applicant was reasonably available at the time of the original hearing and should not be accepted. The court dismissed the counter-application filed by the respondents.

No further orders were made by the court.

Orders

Orders of the court

1. Application for leave to appeal filed by Linda Germanos is dismissed.

2. Counter-application filed by Adam Cosgrove and Anna Hochstadt is dismissed.

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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