Hall v Janet Schouten Real Estate
[2014] QCATA 213
•4 August 2014
| CITATION: | Hall v Janet Schouten Real Estate [2014] QCATA 213 |
| PARTIES: | Anelis Del Hall (Applicant/Appellant) |
| v | |
| Janet Schouten Real Estate (Respondent) |
| APPLICATION NUMBER: | APL241-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 4 August 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 26 September 2013 is set aside. 4. The application filed 4 July 2013 is dismissed. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where agent’s claim on the bond – where fresh evidence to show claims false – whether grounds for leave to appeal PROCEDURE – REOPENING – where reopening of minor civil dispute – where application withdrawn before reopened proceeding finalised – whether original decision still existed – tribunal’s powers on reopening Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 140, 216, 218 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 Hall was a tenant in a house managed by Janet Schouten Real Estate. On 4 July 2013, Janet Schouten filed an application for compensation for damage done to the tenancy. On 26 September 2013, the tribunal ordered the Residential Tenancies Authority pay Janet Schouten $1,090.98 from the bond to compensate for the damage. The tribunal rejected part of Janet Schouten’s claim because Ms Hall was able to demonstrate that the supporting invoice was falsified. She filed a letter from Lakeside Property Solutions confirming that it did not issue the invoice Janet Schouten relied on for a claim of $514.03.
Ms Hall applied for a reopening of the September decision. She had fresh evidence that two more invoices Janet Schouten filed in support of her application were invalid. She produced evidence that goods bought on an invoice from Spotlight for $366.97 were the subject of a later credit note from that store because the goods were returned. She filed material showing that, despite extensive searches, Ms Hall could not find the author of the cleaning invoice. The tribunal granted the reopening.
On 13 May 2014, before the rehearing was completed, Janet Schouten withdrew her application. The tribunal administratively set aside the original decision.
The tribunal below could have reheard the dispute despite the notice to withdraw. Section 140(1) of the QCAT Act states that, on a reopening, the tribunal must decide the issues that must be heard and decided again. It would be an odd result, normally, for the tribunal to hear an application that had been withdrawn, but this is a unique case.
On 28 May 2014, Ms Hall filed an application for leave to appeal the 26 September 2013 decision.
The effect of a reopening is that the tribunal must hear and decide the issues by way of a fresh hearing on the merits[1]. Under s 140(4) of the QCAT Act, the tribunal may confirm or amend the previous final decision[2] or set it aside and substitute a new decision[3]. It is implicit from s 140(4) of the QCAT Act that the decision the subject of the reopening continues unless and until a fresh order is made. Therefore, the appeal tribunal can consider the application for leave to appeal the decision that was reopened.
[1]QCAT Act s 140(2).
[2]Ibid s 140(4)(a).
[3]Ibis s 140(4)(b).
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[4] 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.[5]
[4]QCAT Act s 142(3)(a)(i).
[5]Pickering v McArthur [2005] QCA 294 at [3] per Keane JA.
The evidence Ms Hall supplied in her application for reopening was not before the tribunal below when it made the original decision. The appeal tribunal can only consider that evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Ms Hall 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?[6]
[6]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.
Ms Hall has explained that she could not obtain some of this material without assistance from the Queensland Police. She has now filed a copy of a credit note from Spotlight that she received from the Queensland Police. She has also found the purported authors of the cleaning invoice and obtained affidavits from them confirming that they did not issue the invoice Janet Schouten presented to the tribunal. I am satisfied that this evidence was not reasonably available at the time of the hearing. I am satisfied that the evidence is credible and will have an important impact on the result of the case. The application for leave to appeal should be determined on the evidence before the tribunal below plus the fresh evidence.
The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[7] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[8]
[7]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125 – 126.
[8]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
Here, the tribunal’s conclusions are contrary to the compelling inferences obtained by reference to the fresh evidence. The fresh evidence shows that the three principal invoices Janet Schouten relied to support her claim for compensation are false.
That leaves a claim for $10 for replacement batteries and a claim for two weeks’ rent in lieu of notice. Given Janet Schouten’s obvious dishonesty in issuing false invoices, I have no confidence that the claim for $10 for batteries is valid. It should be dismissed.
The tenancy agreement expired on 31 May 2013. Ms Hall vacated that day. There is no basis for a claim for additional rent.
Leave to appeal should be granted and the appeal allowed. The decision of 26 September 2013 should be set aside and the application for compensation dismissed.
Unfortunately, because the Residential Tenancies Authority released the bond to Janet Schouten, this decision will not mean that the bond will be automatically, or even easily, refunded to Ms Hall. Ms Hall will have to take enforcement action in another jurisdiction.
Janet Schouten obtained money by deception. Ms Hall has suffered loss. A person can claim against a statutory fund if the person suffers financial loss through the stealing, misappropriation or misapplication of property entrusted to a property agent[9]. Depending on what Janet Schouten did with the money from the Residential Tenancies Authority, Ms Hall may have a claim against the statutory fund.
[9]Property Agents and Motor Dealers Act 2000 (Qld) s 470(1)(e).
A person must not give an official a document containing information the person knows is false or misleading in a material particular[10]. The tribunal has the power to punish a person for contempt if a person does give an official a document containing information the person knows is false or misleading in a material particular[11].
[10]QCAT Act s 216(2).
[11]QCAT Act s 218(1)(g).
Although Janet Schouten’s actions in providing false affidavits to the tribunal are serious, I am not persuaded that this is an appropriate case to invoke the tribunal’s contempt powers. Janet Schouten may be penalised for her actions. She may also face disciplinary proceedings. That action will be of greater significance than the tribunal might impose for contempt. As to disciplinary proceedings, I direct that a copy of this decision be forwarded to the Office of Fair Trading for consideration of further action.
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