Helen Ramatanis v The Polley Jones Superannuation Fund
[2022] QCATA 88
•28 June 2022
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Helen Ramatanis v The Polley Jones Superannuation Fund [2022] QCATA 088
PARTIES:
HELEN RAMATANIS (appellant)
v
THE POLLEY JONES SUPERANNUATION FUND (respondent)
APPLICATION NO/S:
APL056-21
ORIGINATING APPLICATION NO/S:
MCD891/20
MATTER TYPE:
Appeals
DELIVERED ON:
28 June 2022
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member PG Stilgoe OAM
ORDERS:
Leave to appeal refused
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – leave to appeal – minor civil dispute – residential tenancy where tenant broke lease – where landlord claimed costs of cleaning – where landlord claimed loss of rent – where tenant claims landlord received additional rent from new tenants
Queensland Civil and Administrative Tribunal Act 2009, s 142(3), s 32
Australian Broadcasting Commission v Bond (1990) 170 CLR 321
Chambers v Jobling (1986) 7 NSWLR 1
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Pickering v McArthur [2005] QCA 294
Waterford v The Commonwealth (1987) 163 CLR 54
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
The Polley Jones Superannuation Fund (Polley) owns unit 2/15 Gordon St, Milton. Helen Ramatanis was Polley’s tenant.
On 24 February 2020, Ms Ramatanis notified Polley that she had to vacate the property due to personal reasons. She paid rent until 26 February 2020 and vacated on 28 February 2020. Polley had new tenants, at a discounted rental, from 13 March 2020.
The parties came before the tribunal. Polley claimed the costs of professional cleaning, submitting Ms Ramatanis left the property in a disorderly state. It also claimed $1,117 loss of rent for the period 18 February to 13 March 2020 due to Ms Ramatanis’ early termination.
The Tribunal allowed Polley $1770.71 as follows:
(a)$425 for the cleaning,
(b)$180 for a mattress and carpet clean,
(c)$180 for the removal of the cigarette smell, and
(d)$985.61 for loss of rent pro rata.
Polley had already received the bond of $1,840.00. Therefore, the tribunal ordered Polley pay Ms Ramatanis the difference of $69.29.
Ms Ramatanis wants to appeal that decision. Because this is an appeal from a decision of the Tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] 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.[2]
[1]Queensland Civil and Administrative Tribunal Act, s 142(3)(a)(i).
[2]Pickering v McArthur [2005] QCA 294 at [3].
Ms Ramatanis is asking for the $69.29 to be adjusted to $469.29. She submits that the tribunal failed to include $400 cash that Polley had received in rent. She says the tribunal closed the hearing before Ms Ramatanis could make submissions about that payment.
It is true that the tribunal did not allow Ms Ramatanis to make submissions about that payment but there were good reasons for that; the time for submissions was over. Ms Ramatanis tried to make those submissions when the learned adjudicator was delivering reasons for the tribunal’s decision.[3] If it is any comfort to Ms Ramatanis, the tribunal similarly declined to take further submission from Polley’s representative once it started giving reasons for decision[4].
[3]T1-29, 17 to T1-30
[4]T1-27.
Findings of fact by a tribunal will not usually be disturbed on appeal if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[5]
[5]Dearman v Dearman (1908) 7 CLR 549 [561]; Fox v Percy (2003) 214 CLR 118 [125]-[126].
An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.[6] 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.[7]
[6]Chambers v Jobling (1986) 7 NSWLR 1 [10].
[7]Fox v Percy (2003) 214 CLR 118 [128] (Gleeson CJ, Gummow and Kirby JJ).
There is no error of law simply in making a wrong finding of fact unless there is no evidence to support that finding.[8]
[8]Waterford v The Commonwealth (1987) 163 CLR 54 [77]; Australian Broadcasting Commission v Bond (1990) 170 CLR 321 [341].
The tribunal had already heard evidence about the “extra” payment.[9] Polley’s representative told the tribunal that there were no tenants before the 13 March 2020.[10] It had documentary evidence to support that submission.
[9]T1-8, 7 to T1-10.
[10]T1-10.
The tribunal accepted that new tenants did not occupy the property until 13 March 2022. The tribunal was entitled to prefer Polley evidence over Ms Ramatanis’ evidence.
The task of this Appeals Tribunal is to determine whether the Tribunal made an error in its decision. It is not to determine whether a different decision could have been made. The evidence can support the tribunal’s finding of fact and I can find no error in its decision.
Orders
Leave to appeal should be refused.
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