Hambly v Tego Property
[2011] QCATA 213
•16 August 2011
| CITATION: | Hambly v Tego Property [2011] QCATA 213 |
| PARTIES: | Fiona May Hambly (Applicant/Appellant) |
| v | |
| Tego Property (Respondent) |
| APPLICATION NUMBER: | APL119-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 16 August 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal refused. |
| CATCHWORDS: | Minor Civil Dispute – Tenancy Matter – where applicant dissatisfied with result below – where attempt to re agitate same issues in the Appeal Tribunal Queensland Civil and Administrative Tribunal Act2009, s 142(3) QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Ms Hambly was a tenant in a property managed by the respondent at Delaneys Creek. Subsequent to Ms Hambly vacating the property the respondent brought an application for compensation in the minor civil disputes jurisdiction of the Tribunal.
On 15 March 2011 the Tribunal made an order that Ms Hambly pay to the respondent the sum of $3,470.00 by way of compensation within a period of 8 weeks. That figure was made up of replacement carpet of $1,380; arrears of rent of $1,525.00; slashing of the property $250.00; flea treatment $165.00; cleaning and deodorising $150. The replacement carpet related to the lounge room area.
From that decision, Ms Hambly has filed an application for leave to appeal or appeal on 11 April 2011. The grounds of her appeal are:
a)She was unaware of the process and procedures associated with the rental claim.
b)She was not made aware of relevant protocol associated with the submission of case documentation.
c)She was not afforded representation.
d)She followed the advice of the Rental Tenancy Advocacy Service.
e)She had thought the matter was resolved prior to hearing.
f)She disputes allegations made by the respondents in their documentary and verbal evidence.
As this is an appeal from a minor civil dispute jurisdiction, leave to appeal 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?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[4]
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at 2.
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]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.
Annexed to the application is, it seems an identical submission to that made before the learned Adjudicator at the hearing. Essentially, what Ms Hambly is asking this Appeal Tribunal to do, is to revisit the factual matters that were in dispute before the original decision maker and come to another decision. That is not the function of the Appeal Tribunal nor is it a base upon which leave to appeal would be granted.
Turning to the specific grounds of appeal it is evident on their face, that no specific error on the part of the decision maker is identified. There is general discontent with the process but none which would give rise to a finding that there was a substantial injustice.
A perusal of the transcript indicates that the learned Adjudicator gave Ms Hambly every opportunity to put forward her case and in fact gave her the benefit of the doubt with respect to the renewed tenancy agreement which had the effect of significantly reducing her exposure to outstanding rent. There is nothing in the transcript which would suggest that she was treated unfairly or, even accepting that she was unaware of the process or procedures that she was at a disadvantage in any way.
The fact that she could not afford representation is again not a proper ground of appeal upon which leave would be granted because clearly legal representation in the minor civil disputes jurisdiction is restricted in any event. Her claim that she followed the advice of the Tenancy Advocacy Service again is also not a relevant criterion in considering whether to grant leave.
In so far as Ms Hambly alleges that the matter was resolved before the hearing, I can only assume she is referring to the fact that she received a pay out of the bond. Her receipt of the bond was never concession on the part of the respondent that it waived any rights to make a compensation claim or claim for arrears of rent.
[10] Ms Hambly has advised the Tribunal that she did not propose to put in any further material other than that which is annexed to the application.
[11] I have read the transcript, the annexure to her application for leave to appeal which, as I have indicated simply regurgitates the same facts put before the learned Adjudicator, and the submissions filed in the appeal. I can not identify any error on the part of the learned Adjudicator which would warrant a grant of leave to appeal. Therefore, leave to appeal must be refused.
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