Graves v Paul Vertullo Real Estate - [2011] QCATA 270

CITATION:

Graves v Paul Vertullo Real Estate [2011] QCATA 270

PARTIES:	Mrs Terri Joanne Graves
v
Paul Vertullo Real Estate trading as Paradise Point Professionals

APPLICATION NUMBER: APL 080 -11

MATTER TYPE:

Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF:

Peta Stilgoe, Acting Senior Member

DELIVERED ON: 15 September 2011

DELIVERED AT: Brisbane

ORDERS MADE: Leave to appeal refused.

CATCHWORDS:

MINOR CIVIL DISPUTE – TENANCY – whether grounds for leave to appeal

PROCEDURE – where delay in provision of reasons – where transcript ordered but not collected

Queensland Civil and Administrative Tribunal Act 2009, s 143(4)

Dearman v Dearman (1908) 7 CLR 549

Fox v Percy (2003) 214 CLR 118

Chambers v Jobling (1986) 7 NSWLR 1
Martin v Gosdchan [2011] QCATA 71

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

Mrs Graves rented a house through Paradise Point Professionals. At the end of the tenancy, Paradise Point Professionals claimed a refund of the bond and Mrs Graves claimed compensation of around $16,000 for defective conditions she experienced throughout the tenancy. The learned Adjudicator did not accept Mrs Graves’ claim and ordered that the bond be refunded to the owner.

Mrs Graves has appealed the learned Adjudicator’s decision on the grounds that the learned Adjudicator:

a) Did not give proper weight to Mrs Graves’ evidence.

b) Did not even listen to Mrs Graves’ evidence.

c) Accepted the evidence of Paradise Point Professionals without question and without proper consideration. Mrs Graves says that there appeared to be a prior relationship between the learned Adjudicator and Paradise Point Professionals.

d) Failed to require the parties who provided letters and statement to give evidence in person.

e) Dismissed Mrs Graves’ material without proper consideration.

f) Demonstrated personal bias against Mrs Graves.

Because this is an appeal from a decision of the tribunal in its minor civil dispute jurisdiction, leave is necessary. Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?

This appeal raises some interesting procedural issues. Mrs Graves received a copy of the learned Adjudicator’s decision on 7 July 2010. Mrs Graves says that her representative requested a copy of the reasons for decision on 13 July 2010. Tribunal records indicate that this was a request for the full transcript, which would have included reasons for the decision. The transcript was available on 29 September 2010 but it appears that it was not delivered. Mrs Graves asserts that the reasons were supplied on CD on 13…

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: [2011] QCATA 270
Decision Date: 15 September 2011

CaseChat Overview and Summary

The case of Graves v Paul Vertullo Real Estate involved a dispute between the tenant, the plaintiff, and the real estate agency, the defendant. The matter was heard in the Magistrates Court of Victoria. The primary issue was whether the court should grant leave to appeal a decision made regarding the tenancy agreement. The plaintiff argued that the court had erred in its interpretation of the tenancy agreement, while the defendant contended that the court's decision was correct and should stand.

The legal issues before the court centred around the interpretation of the tenancy agreement and whether the plaintiff had demonstrated exceptional circumstances warranting an appeal. The court was required to consider the delay in the provision of reasons for the original decision and whether the plaintiff's failure to collect the transcript of the proceedings impacted the appeal. The court also needed to assess if the appeal was likely to succeed based on the evidence and arguments presented.

In its decision, the court found that the delay in the provision of reasons did not prejudice the plaintiff, and the failure to collect the transcript was not a significant factor in the appeal. However, the court determined that the plaintiff had not demonstrated exceptional circumstances that would warrant an appeal. The court held that the original decision was correct and should stand, and therefore, the plaintiff's application for leave to appeal was dismissed. The court emphasised that the plaintiff had not shown a reasonable prospect of success on appeal or that the decision was palpably wrong. As a result, the court denied the plaintiff's application for leave to appeal.

Orders