Kasapi v Hassan
[2013] QCATA 88
•27 March 2013
| CITATION: | Kasapi v Hassan & anor [2013] QCATA 88 |
| PARTIES: | John Robert Kasapi (Applicant/Appellant) |
| V | |
| Ghali Hassan John Ahern Real Estate (Respondent) |
| APPLICATION NUMBER: | APL027 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 27 March 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 10 December 2012 is set aside. 4. The proceeding is remitted to the tribunal at Brisbane for hearing. |
| CATCHWORDS: | MINOR CIVIL DISPUTE – where allegation of forgery – standard of proof – 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
Mr Kasapi and Mr Hassan were flatmates. Mr Kasapi had been a tenant of the property before Mr Hassan moved in. They signed a six month lease in May 2012. The lease was renewed in September for a further six months but Mr Kasapi moved out in November. He says he was never bound by the September agreement. Mr Hassan applied to the tribunal for orders allowing him to find a new co-tenant, force Mr Kasapi to pay his share of the rent in the meantime and pay for damage to the premises. The tribunal confirmed that Mr Kasapi was bound by the September tenancy agreement and it adjourned the hearing to enable the parties to find a new tenant.
Mr Kasapi wants to appeal that decision. He says that the learned Adjudicator did not fully consider and give due weight to the evidence. He says he was not given sufficient opportunity to present his case and submit all relevant documents. He says that the learned Adjudicator incorrectly described the burden of proof for forgery as a “high burden”.
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.
Mr Kasapi has filed a report from Barbara Nichol dated 8 January 2013. She is an expert on handwriting. The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined.[5] Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Mr Kasapi 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?[6]
[5] ss 137 and 138 QCAT Act
[6] Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408
Mr Kasapi says that I should accept this report because he “did not reasonably apprehend” that it would be required because he thought that Mr Hassan had the onus of proving that the signature was a forgery. He also says that, because the proceeding has been adjourned, there is no prejudice if he obtains further evidence.
As to the last point, Mr Kasapi is misdirected. The learned Adjudicator has decided whether the contract is valid. The adjournment assumes that finding and requires the parties to act upon it.
Mr Kasapi’s submissions on appeal are carefully and thoughtfully drafted. He demonstrates a sophisticated knowledge of the Queensland Civil and Administrative Tribunal Act 2009. I find it difficult to believe that Mr Kasapi overlooked the critical issue of onus of proof when he was preparing his case for the hearing. He could have obtained Ms Nichol’s report for the hearing and his reason for not obtaining it is unconvincing.
Even if Mr Kasapi had good reason for his failure to produce Ms Nichol’s report at the hearing, I am not persuaded that the report is credible. Ms Nichol admits that her findings are qualified because she has not examined the original documents. Mr Kasapi does not explain why he did not make these documents available to Ms Nichol. I will not admit the fresh evidence and the application for leave to appeal must proceed on the basis of the evidence before the learned Adjudicator.
I do not agree that Mr Kasapi did not have an opportunity to submit all relevant documents. The learned Adjudicator asked him three times to hand up the documents that he wanted to rely on.[7] I do not agree that the learned Adjudicator failed to consider those documents. The record of proceedings shows that she spent several minutes reading the documents. I do agree that Mr Kasapi did not make submissions about his case and, although the learned Adjudicator asked the parties if there were any further submissions,[8] Mr Kasapi did not, in fact, have that opportunity.
[7] Transcript at 23:35, 24:07 and 26:09.
[8] Transcript at 35:56.
The appeals tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[9] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[10] 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.[11]
[9]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[10] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[11] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
Mr Kasapi is correct when he says that the issue of forgery is to be decided on the balance of probabilities.[12] The learned Adjudicator had to make a finding about who put the signature on the tenancy agreement. That required specific findings as to which evidence was accepted, and the reasons why, not general findings.
[12]Neat Holdings Pty Limited v Karajan Holdings Pty Limited(1992) 110 ALR 449 at 451.
The learned Adjudicator found that “perhaps” Mr Kasapi’s signature was fraudulently applied. She also found that the statutory declarations he provided meant that it was unlikely he could have signed the document on that particular date. But the learned Adjudicator found that Mr Kasapi concocted an extremely elaborate explanation to avoid a fixed term agreement.
The learned Adjudicator’s last finding ignores Mr Kasapi’s evidence that he intended to leave the premises at the end of the November and he did not see the subject agreement until the agent sent it to him after he left. Mr Hassan could not afford to stay in the premises on his own. He needed someone else to pay most of the rent. Mr Hassan had much to lose if Mr Kasapi was not a party to the September tenancy agreement.
The learned Adjudicator’s finding that Mr Kasapi signed the tenancy agreement is contrary to the compelling inferences and her own comments. By adopting a higher standard of proof, the learned Adjudicator led herself into the error of finding that Mr Kasapi had concocted an elaborate plot of which there was no evidence.
Leave to appeal should be granted and the appeal allowed. Because the dispute has been adjourned to enable the parties to find another tenant, and the issue of compensation between Mr Kasapi and Mr Hassan is still at large, the decision of 10 December 2012 should be set aside. The proceeding should be returned to the tribunal in Brisbane for hearing.
0
2
0