Kelaway Pty Ltd v Couples International
[2013] QCATA 283
•30 September 2013
| CITATION: | Kelaway Pty Ltd v Couples International [2013] QCATA 283 |
| PARTIES: | Kelaway Pty Ltd (Applicant/Appellant) |
| v | |
| Mr Brian Robert Horn t/as Couples International (Respondent) |
| APPLICATION NUMBER: | APL323 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | P Stilgoe, Senior Member |
| DELIVERED ON: | 30 September 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused |
| CATCHWORDS: | MINOR CIVIL DISPUTE – 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 (QCAT Act).
REASONS FOR DECISION
Mr Horn rented premises from Kelaway Pty Ltd. He filed a claim for reimbursement of rent and expenses that he overpaid during the term of the lease. The tribunal ordered Kelaway pay Mr Horn $16,529.99.
Kelaway wants to appeal that decision. It says that the learned Member’s decision does not show how he calculated the amount of the order. It says that he has not identified which parts of Mr Horn’s claim he allowed. Kelaway challenges the learned Member’s figures and says that it should only have to pay Mr Horn $4,977.34.
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.
Kelaway has filed a “statement of evidence” in support of its application for leave to appeal. Some of these documents are new. In particular, Kelaway has filed a copy of a letter from its brokers dated 19 June 2013. 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 Kelaway 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] QCAT Act ss 137 and 138.
[6] Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.
The learned Member noted that there was no evidence of the breakdown of the insurance premium between the building, for which Mr Horn was liable, and an unidentified business, for which he was not liable. In the absence of that evidence, the learned Member accepted Mr Horn’s calculation. It seems that Kelaway has filed the new material to rebut this presumption.
Kelaway is too late. An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party’s case at the initial hearing. Kelaway knew that the apportionment of the insurance premium was an issue in this dispute. It could have asked its broker for evidence about that before the hearing. Kelaway has not explained why this evidence was not available earlier. The evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Member.
I do not accept that the learned Member has not explained how he calculated the amount owing. He accepted Mr Horn’s calculation of the amounts and he explained why. The learned Member has given sufficient reasons for his decision. I am not inclined to grant leave to appeal on this basis.
That leaves the question of the calculation itself. The appeals tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[7] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[8] 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.[9]
[7]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125 - 126.
[8] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[9] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
Kelaway agreed that it overcharged Mr Horn at least $4,000. Kelaway conceded that it had overcharged Mr Horn for the insurance. The learned Member had to decide the proportion. He also had to decide whether Kelaway could increase the rent by 5% during the holding over period. During the hearing, each of the parties took the learned Member through spreadsheets they had prepared. The learned Member asked insightful questions of each and considered the calculations carefully.
I have considered the transcript and the learned Member’s decision closely. The evidence supports the learned Member’s findings and I can find no good reason to take a different view of the facts.
There is no question of general importance that should be determined by the appeals tribunal. There is no reasonably arguable case that the learned Member was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.
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