Grogan & Stanbridge v Murray
[2013] QCATA 271
•1 October 2013
| CITATION: | Grogan & Stanbridge v Murray [2013] QCATA 271 |
| PARTIES: | Mr Christopher Grogan Ms Bronwyn Stanbridge |
| v | |
| Mr Michael Murray |
| APPLICATION NUMBER: | APL281-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe OAM, Senior Member |
| DELIVERED ON: | 1 October 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):
The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Mr Murray rented a home to Mr Grogan and Ms Stanbridge. They were often behind in their rent. Finally, Mr Murray applied to the tribunal for termination of the tenancy agreement. Mr Grogan and Ms Stanbridge argued that the house needed repairs, many of which they had paid for, and that they had an agreement with Mr Murray that they would do work on the house in exchange for a rent reduction. The learned Adjudicator found that Mr Grogan and Ms Stanbridge did owe Mr Murray rent. The learned Adjudicator terminated the tenancy agreement.
Mr Grogan and Ms Stanbridge want to appeal that decision. They say that the learned Adjudicator did not consider their evidence or the law.
It is clear from the transcript that Mr Grogan had pictures of the tenancy that he wanted to show the learned Adjudicator. The learned Adjudicator did not accept the photos into evidence so Mr Grogan has filed them with the application for leave to appeal.
The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined[1]. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Mr Grogan and Ms Stanbridge 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?[2]
[1]QCAT Act ss 137 and 138.
[2]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.
The learned Adjudicator did not accept the photos because they were not relevant to his decision. Mr Grogan and Ms Stanbridge owed Mr Murray rent. The learned Adjudicator had to decide whether there was any agreement to offset Mr Grogan’s work on the house against the rent. The condition of the house, and any remedy that might flow from it, was a separate matter.
Mr Grogan has also filed evidence of mould that he discovered after the hearing which, he says, affects the amenity of the house. As the tribunal has observed[3], there are lots of reasons why a house might have mould. Sometimes the tenant is responsible; sometimes the lessor. The mere fact of mould, without further investigation, does not mean that Mr Murray breached his obligations to Mr Grogan and Ms Stanbridge. The photos do not have an important impact on the result of this case and should not be admitted.
[3]Weathered v Ferraro[2012] QCAT 665.
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?[4] Is there a reasonable prospect that the applicant will obtain substantive relief?[5] Is leave necessary to correct a substantial injustice caused by some error?[6] Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?[7]
[4]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[5]Cachia v Grech [2009] NSWCA 232 at 2.
[6]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[7]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.[8] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[9] 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.[10]
[8]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[9]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[10]Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
Mr Grogan does not say which law the learned Adjudicator failed to consider. Mr Grogan and Ms Stanbridge can only succeed in this application if the learned Adjudicator was wrong in finding that, at the time the Form 12 was issued, they were not behind in their rent. I have read the transcript of the hearing carefully. The learned Adjudicator was entitled to find that the rent was outstanding and I can find no reason to come to a different view.
I have already dealt with Mr Grogan’s submission that the learned Adjudicator failed to consider his evidence. There is no basis to this ground of appeal.
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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