He v Qin & Ors

Case [2021] ACAT 129

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

HE v QIN & ORS (Appeal) [2021] ACAT 129

AA 45/2020

Catchwords:               APPEAL – residential tenancies – two separate tenancies in one two bedroom unit – tenants applied to tribunal seeking orders to terminate tenancy agreements and return of their bond – lessor filed counterclaim for cleaning costs, utilities costs and early termination of fixed term lease – both matters heard together – original tribunal ordered the lessor to pay specified sums to tenants – dismissed lessor’s counterclaim – lessor appealed – nature of appeal – whether further evidence should be admitted on appeal – whether the original tribunal erred in ordering the lessor to pay compensation to the tenants – whether the original tribunal erred in dismissing the lessor’s application for compensation – whether original tribunal afforded procedural fairness to lessor – appeal dismissed

Legislation cited:        ACT Civil and Administrative Tribunal Act 2008 ss 79, 82

Residential Tenancies Act 1997 ss 9, 44 standard term 42

Subordinate

Legislation cited:        ACT Civil and Administrative Tribunal Procedures Rules 2020 r 91

Cases cited:CDJ v VAJ (No 1) [1998] HCA 67

Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4
Fox v Percy [2003] HCA 22
Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275
Hurst-Myers v Aulich Civil Law Pty Ltd [2020] ACAT 56
Qin & Ors v He [2020] ACAT 116
Tam v Du [2019] ACAT 94
V v Elringtons Pty Ltd [2018] ACAT 23

Tribunal:President G Neate AM

Senior Member T Warwick

Date of Orders:  23 December 2021

Date of Reasons for Decision:      23 December 2021

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          AA 45/2020

BETWEEN:

HONGGUANG HE

Appellant/Lessor

AND:

XINZHU QIN

First Respondent/Tenant

DAWEI GUO

Second Respondent/Tenant

YILIN FANG

Third Respondent/Tenant

YANG YANG

Fourth Respondent/Tenant

APPEAL TRIBUNAL:       President G Neate AM

Senior Member T Warwick

DATE:23 December 2021

ORDER

The Tribunal orders that:

  1. The appeal is dismissed.

  2. Hongguang He is to pay:

    (a)the sum of $3,275.25 to Xinzhu Qin and Yang Yang jointly;

    (b)the sum of $1,500.00 to Dawei Guo; and

    (c)the sum of $75.25 to Dawei Guo and Yilin Fang jointly.

    ………………………………..

President G Neate AM

For and on behalf of the Tribunal

REASONS FOR DECISION

Introduction

  1. Dr Hongguang (Michael) He (the lessor), who sublet a unit to four tenants, has filed an appeal against the decisions of a differently constituted tribunal (the original tribunal) in proceedings RT 233 of 2020 and RT 310 of 2020.[1]

  2. In RT 233 of 2020, the original tribunal upheld the tenants’ claim to end the tenancy, upheld the tenants’ claim for compensation for certain breaches of the tenancy agreements, and dismissed the lessor’s counter claim for loss of rent and compensation for cleaning.

  3. In RT 310 of 2020, the original tribunal dismissed the lessor’s claim for loss of rent and compensation for cleaning and other items.

  4. In both appeals, the respondents are Mr Dawei Guo, Ms…

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Details
AGLC
He v Qin and Ors (Appeal) [2021] ACAT 129
Case
[2021] ACAT 129
Decision Date

CaseChat Overview and Summary

In the case of He v Qin & Ors, the appellant sought to introduce new evidence at the appellate stage. The tribunal was tasked with determining whether leave should be granted to admit this further evidence. The respondents argued that the appellant had failed to demonstrate that the new evidence was exceptional and necessary to serve the demands of justice. The tribunal was required to assess whether the criteria for admitting new evidence on appeal were met, particularly in light of the principles established in previous cases such as Hurst-Myers v Aulich Civil Law Pty Ltd and Fox v Percy. The tribunal's decision hinged on whether the new evidence was exceptional and whether its admission would have altered the outcome of the original decision.

The tribunal examined the principles governing the admission of further evidence on appeal, drawing on the High Court's decision in CDJ v VAJ (No 1). It noted that further evidence should not ordinarily be admitted if it was available or could reasonably have been obtained at the time of the hearing. The tribunal also considered the importance of finality, the discoverability of the evidence, and its likely effect on the orders made. In this case, the tribunal found that the appellant had not demonstrated that the new evidence was exceptional or that it would have produced a different result if it had been available at the trial. The tribunal emphasised that justice would not be served unless it was satisfied that the further evidence would have led to a different outcome. Given these considerations, the tribunal concluded that the new evidence did not meet the criteria for admission.

The tribunal dismissed the appeal and ordered the appellant to pay the specified amounts to the respondents. This decision underscored the tribunal's adherence to the well-established principles regarding the admission of further evidence on appeal. The tribunal found that the appellant had not shown that the new evidence was exceptional or that its admission was necessary to serve the demands of justice. Consequently, the tribunal upheld the original decision, and the appeal was dismissed with the appellant ordered to pay the specified sums to the respondents.

Orders

Orders of the court

The Tribunal orders that:

1.

The appeal is dismissed.

2.

Hongguang He is to pay:

(a) the sum of $3,275.25 to Xinzhu Qin and Yang Yang jointly;

(b) the sum of $1,500.00 to Dawei Guo; and

(c) the sum of $75.25 to Dawei Guo and Yilin Fang jointly.

Background

Background to the litigation

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Evidence

Evidence Before The Court

It is not enough for an appellant to say that a different inference of fact should have been made when all the evidence is weighed in the balance. The appellant must show that a material finding of fact was clearly wrong.Further evidence on appeal Rule 91(c) of the ACT Civil and Administrative Tribunal Procedures Rules 2020 provides that the appeal tribunal may, if leave is granted, receive further evidence about questions of fact. The principles regarding the grant of leave to introduce further evidence on appeal are well-settled. They are summarised in Hurst-Myers v Aulich Civil Law Pty Ltd[7] where the tribunal drew on the High Court’s decision in CDJ v VAJ (No 1)[8] to say that the reception of further evidence on appeal should be “exceptional”. It noted Justice Gaudron’s view that:…ordinarily, further evidence should not be admitted on appeal if it was available, or could reasonably have been obtained, at the time of the hearing.[9][7] Hurst-Myers v Aulich Civil Law Pty Ltd [2020] ACAT 56 at [11]-[30][8] CDJ v VAJ (No 1) [1998] HCA 67[9] CDJ v VAJ (No 1) [1998] HCA 67 at [55] The tribunal also noted the observations of Justices McHugh, Gummow and Callinan, who stated that factors such as finality, discoverability of the evidence and its likely effect on the orders made are usually relevant to whether the discretion to admit new evidence should be exercised. The tribunal quoted their Honours’ view that:The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.[10][10] CDJ v VAJ (No 1) [1998] HCA 67 at [111] In the later case of Fox v Percy, Chief Justice Gleeson and Justices Gummow and Kirby wrote:The “rehearing” does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits.[11] [emphasis added][11] Fox v Percy [2003] HCA 22 at [22] The tribunal concluded by saying that from these authorities:[I]t is apparent that an Appeal Tribunal would only grant leave to admit further evidence about questions of fact in exceptional circumstances where it serves the demands of justice to do so.[12][12] Hurst-Myers v Aulich Civil Law Pty Ltd [2020] ACAT 56 at [30] At a directions hearing on 11 January 2021, a presidential member of the tribunal made orders in relation to the appeal, including orders that, by 18 January 2021, Dr He give to the four tenants and the tribunal a copy of any further evidence for the hearing of the appeal and written submissions in support of the application for further evidence.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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