Integrity Property Management v Carter
[2014] QCATA 188
•21 July 2014
| CITATION: | Integrity Property Management v Carter & Anor [2014] QCATA 188 |
| PARTIES: | Integrity Property Management (Applicant/Appellant) |
| v | |
| Jill Carter Martin Saker (Respondents) |
| APPLICATION NUMBER: | APL076 -14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 21 July 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where respondent did not appear at hearing – whether reasonable excuse for non-attendance – where fresh evidence filed - whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 92, 139 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
Ms Carter and Mr Saker applied to the tribunal for the refund of their bond. The application came before the tribunal on 16 October 2013 and was adjourned to 11 November 2013. Neither side appeared on that date, so the tribunal dismissed the application. Ms Carter and Mr Saker successfully applied to reopen the proceeding. On 16 December 2013, the proceeding was again before the tribunal. Ms Carter and Mr Saker appeared. Integrity Property Management did not appear. The tribunal ordered that Integrity refund the bond.
Integrity wants to appeal that decision. It submits that it was not aware of the tribunal hearing on 16 December. It states that it has not had an opportunity to be heard and that it has not presented evidence to the tribunal.
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]QCAT Act s 142(3)(a)(i).
[2]Pickering v McArthur [2005] QCA 294 at [3] per Keane JA.
Integrity’s application for leave to appeal is, in fact, yet another application to reopen. The tribunal may reopen a proceeding if a party did not appear at a hearing and had a reasonable excuse for not attending[3].
[3]QCAT Act s 138.
The principal registrar must give notice of the time and place of the hearing to each party[4]. All notices from the tribunal to Integrity went to the same address; 32 Cinderella Drive, Springwood. That address is shown on Integrity’s letterhead.
[4]QCAT Act s 92.
It is odd that Integrity received every notice and every decision, except the notice of hearing. It is not enough for Integrity simply to say that it did not receive that one document, when the evidence shows that it was posted to an address where other mail was successfully delivered. I am not satisfied that Integrity has shown it had a reasonable excuse for not attending. It therefore follows that I do not accept there are proper grounds for a reopening of the proceeding.
Integrity wants to submit evidence to the appeals tribunal to support its claim that Ms Carter and Mr Saker were not entitled to a refund of the bond.
The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Integrity have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?[5]
[5]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.
Integrity has filed copies of emails, photographs, the tenant ledger and invoices. It must have had this material available prior to the first date for hearing in October 2013. It had a counter claim against Ms Carter and Mr Saker but it did not file any material in support of that counterclaim even though there was an adjourned hearing date. Presumably, Integrity intended to present the evidence on the day of the hearing. Because I have not accepted Integrity’s submissions for its non-attendance at the hearing, it follows that I cannot accept its submissions for the failure to present the evidence to the tribunal below.
The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[6] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[7]
[6]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[7]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
The learned Adjudicator was aware that Integrity had a claim against the bond. He heard evidence about those claims and determined that he had no reliable evidence on which to make a compensation order against Ms Carter and Mr Saker. That finding can be supported by the evidence and there is nothing in the transcript to persuade me that the learned Adjudicator should have taken a different view of the facts.
There is no reasonably arguable case that the learned Adjudicator was in error. Leave to appeal should be refused.
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