Harber v Weis
[2013] QCATA 350
•3 December 2013
| CITATION: | Harber v Weis [2013] QCATA 350 |
| PARTIES: | Luke Harber (Applicant/Appellant) |
| v | |
| Julia Weis Cottee Real Estate (Respondent) |
| APPLICATION NUMBER: | APL411-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM |
| DELIVERED ON: | 3 December 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – 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.
REASONS FOR DECISION
When Mr and Mrs Harber left the home they rented from Mrs Weis, there were three issues. The kitchen benchtop had a burn mark. The bathroom vanity top was damaged. There was a broken tile in the bathroom. An Adjudicator ordered Mr and Mrs Harber pay Mrs Weis for the kitchen and bathroom damage. He did not require Mr and Mrs Harber pay anything for the damaged tile.
Mr and Mrs Harber want to appeal the learned Adjudicator’s decision. They say that the exit condition report was not completed correctly. They say that, if the learned Adjudicator did not accept the entry condition report as evidence of damage to the tile, he should not have accepted it as evidence of damage to the kitchen and bathroom benchtops.
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?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appeals 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.
A careful reading of the learned Adjudicator’s reasons for decision show that Mr and Mrs Harber’s submissions are misconceived. The learned Adjudicator was satisfied that the entry condition report showed that there was no damage to the kitchen or bathroom benchtops. He was also satisfied that the exit condition report did show damage, so that there was clear evidence of a change in condition.
The learned Adjudicator was not so convinced with the tile because the entry condition report did record some damage to tiles. Because the wording of the exit condition report was imprecise, the learned Adjudicator was not satisfied that Mrs Weis established a right to recover the cost of the damaged tile.
The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[5] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[6]
[5]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[6] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
The evidence supports the learned Adjudicator’s finding. There is nothing in the transcript to persuade me that the he should have taken a different view of the facts and there is no compelling reason to come to a different decision.
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.
0
4
0