Hockey v Arthur Conias Real Estate
[2014] QCATA 79
•14 April 2014
| CITATION: | Hockey v Arthur Conias Real Estate [2014] QCATA 79 |
| PARTIES: | Joel David Hockey (Applicant/Appellant) |
| v | |
| Arthur Conias Real Estate (Respondent) |
| APPLICATION NUMBER: | APL543 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 14 April 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY DISPUTE – where lessor claimed damages from agent for failing to comply with terms of appointment – where tribunal found no breach of terms of appointment – whether grounds for leave to appeal TRIBUNAL PROCEDURE – TIME FOR FILING MATERIAL – where counter application filed – where counter application not served within 7 days – where applicant received counter application the night before the hearing – where no request for adjournment – whether tribunal proceeding to hear counter application was unfair – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 3(b), s 61(1)(c) 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
Mr Hockey owns a home in Ashgrove. In 2012, he received an offer to work in the United States. He decided to rent his Ashgrove home while he was away so he put the rental in the hands of Arthur Conias Real Estate. In 2013, Mr Hockey filed a claim for the refund of the management fees he paid Conias. Late in the proceedings, Conias filed a counter application for payment of a re-letting fee. Two Justices of the Peace, sitting in the minor civil disputes jurisdiction of the tribunal, dismissed Mr Hockey’s claim but ordered that he pay Conias the re-letting fee.
Mr Hockey wants to appeal that decision. He says that the original hearing was not fair and did not follow the tribunal procedure. He disagrees with the learned Justices’ finding that Conias prepared an inventory as instructed. He disagrees with the learned Justices’ findings that Conias was entitled to its management fees. He disagrees with the learned Justices finding that Conias was entitled to the reletting fee. Mr Hockey now wants to bring an additional claim for lost rental payments and increased agency fees.
The purpose of an application for leave to appeal is to correct an error by the original tribunal. That means that the appeals tribunal will revisit the claims before the original tribunal. Mr Hockey cannot add new claims to the application for leave to appeal. I will, therefore, not consider Mr Hockey’s claims for lost rental payments and increased agency fees.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as His Honour then was) in Pickering v McArthur[1]:
There are numerous authorities, in varying language but with unvarying emphasis, that 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.
[1][2005] QCA 294 at [3].
Mr Hockey says that he did not receive Conias’ counterclaim until the day before the hearing. He says that the counterclaim was filed on 14 October 2013 but did not arrive by post until 30 October 2013. He says this is contrary to the instructions in the counter application, which require service within seven days of lodgement. He says that Conias served his father-in-law, rather than a Wooloowin address listed on Mr Hockey’s application. He says that Conias should have emailed the documents to him. For all these reasons, Mr Hockey says the hearing was unfair and the tribunal should have dismissed the counter application.
On 22 October 2013, the tribunal ordered that Conias file and serve any material on which it intended to rely by 4pm the business day prior to the scheduled hearing. The tribunal obviously contemplated a very short period for delivery of material. Even though the material of which Mr Hockey complains was filed prior to that order, the result complied with the intent of the order. Mr Hockey had the material prior to the hearing.
The transcript shows that the learned Justices sought comment from Mr Hockey at the conclusion of Conias’ submissions about the counter application[2]. He did not complain about the late delivery of material. He did not ask for an adjournment. Instead, Mr Hockey argued the issues contained in the counter application.
[2]Transcript page 1-15, line 37.
The tribunal has an obligation to deal with matters in a way that is informal and quick[3]. It has power to waive compliance with procedural requirements under the QCAT Act[4]. The tribunal is unlikely to dismiss an application for technical non-compliance if there is no request from a party to do so or there is no obvious disadvantage in doing so. The transcript shows no disadvantage to Mr Hockey; he understood the claim and argued the point cogently.
[3]QCAT Act s 3(b).
[4]QCAT Act s 61(1)(c).
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 learned Justices heard evidence from both sides about the inventory. They found that Conias did prepare the inventory as required. Ms Slatherley, for Conias, gave evidence about her conversations with Mrs Hockey[7]. Mrs Hockey did not give evidence. The learned Justices preferred Ms Slatherley’s version of events. There is nothing in the transcript to persuade me that the learned Justice should have taken a different view of the facts.
[7]Transcript page 1-7, line 40 to page 1-8 line 5. Page 1-10, lines 1-9.
The learned Justices accepted that Conias did inspections as required. The evidence can support that finding and I can find no compelling reason to come to a different view. It also appears that Mr Hockey misunderstood the role of a managing agent. He was not just paying for regular inspections. He was paying Conias to collect the rent, pass the payments on to him, and liaise with the tenant if repairs were necessary. Mr Hockey cannot quarantine one of these tasks, say it was not done, and then argue that he should pay nothing.
Whether or not Conias was entitled to a further reletting fee concerned whether Conias had a tenant which Mr Hockey refused to accept for reasons unrelated to Conias’ work. The learned Justices heard from both parties. They preferred the evidence of Ms Slatherley. The evidence can support their finding and, again, I can find no compelling reason to come to a contrary view.
There is no reasonably arguable case that the learned Justices were in error. Leave to appeal should be refused.
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