LLSF Pty Ltd v Profke
[2012] QCATA 159
•27 August 2012
| CITATION: | LLSF Pty Ltd v Profke [2012] QCATA 159 |
| PARTIES: | LLSF Pty Ltd (Applicant/Appellant) |
| v | |
| Narelle Profke (Respondent) |
| APPLICATION NUMBER: | APL099-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 27 August 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Application for leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY MATTER – whether a rental tenancy agreement existed between parties – whether respondent in breach of alleged agreement and failed to comply with notice issued – question of relationship between the parties – discrepancy of evidence of parties – where Magistrate preferred evidence of one party over another – leave to appeal refused Queensland Civil and Administrative Tribunal Act 2009, ss 32, 142 (3)(a)(i) QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Cachia v Grech [2009] NSWCA 232 |
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 (QCAT Act).
REASONS FOR DECISION
LLSF Pty Ltd is the trustee of a superannuation fund which owns residential premises on the Sunshine Coast. The fund is a self managed superannuation fund in which Mr Greg Mitchell is interested.
The fund brought proceedings in QCAT’s minor civil disputes jurisdiction claiming that Ms Profke was a tenant in the premises, to whom the Residential Tenancies and Rooming Accommodation Act 2008 (RTRA) applied; that she had wrongly ceased to pay rent, and the rent had fallen in arrears; and, that she had failed to comply with a notice to leave.
The matter came on for hearing before a Magistrate sitting as a QCAT Member on 23 January 2012. After taking evidence from both Mr Mitchell and Ms Profke and reading documents they had provided, he dismissed the fund’s application on the grounds that Ms Profke had always resided in the premises as an incident of a defacto relationship between her and Mr Mitchell, in circumstances to which the RTRA did not apply.
The fund has sought leave to appeal the decision. Because the original proceeding was a minor civil dispute, leave is necessary: QCAT Act, section 142(3)(a)(i).
Parliament made it clear, in the QCAT Act, that speedy and final determinations are desirable in the minor civil disputes (MCD) jurisdiction and that parties should not have an automatic right of appeal. That is why it inserted this additional provision, requiring that a party dissatisfied with a decision in an MCD could not appeal without first establishing a proper ground for a grant of leave to appeal.
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 to the applicant caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appellate court or 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.
The written submissions provided by the parties in the appeal and the audio recording of the proceedings before the learned Magistrate show that the parties had starkly different perceptions of the circumstances in which Ms Profke had lived in the premises since late 2010.
Mr Mitchell’s claim was that she had resided there as a tenant, paying rent under an oral tenancy agreement until September 2011, when her payments ceased. Ms Profke’s case was that she and Mr Mitchell shared a de facto marriage relationship between 2008 and late 2011, and that the premises were purchased in that period with the intention that she should reside in them, while Mr Mitchell worked away in remote parts of Queensland. Her evidence was, also, that the payments that she had made were not for rent but, rather, her contribution towards the mortgage debt on the premises and its maintenance and upkeep.
The learned Magistrate identified this vivid discrepancy in the course of the hearing, and in oral reasons he gave at the conclusion. In those Reasons he said that he was not satisfied that a residential tenancy agreement of the kind identified in section 12 of the RTRA existed, primarily because, where there was a conflict between the evidence of Mr Mitchell and Ms Profke, he preferred Ms Profke’s version.
In light of the conflicts in the evidence, the learned Magistrate was obliged to make this choice. Appeal Courts and Tribunals are always reluctant to interfere with findings of this kind unless it can be shown they have no rational or reasonable basis in, or support from, the evidence which has been presented.
Nothing in Mr Mitchell’s submissions in support of his application for leave to appeal is persuasive that the learned Magistrate’s choice was necessarily wrong, irrational, or illogical, or obviously mistaken or erroneous.
It should be understood that leave to appeal will not be given simply where a party desires to re-argue the case on existing, or additional evidence. One clear purpose of a “leave” requirement is to prevent any attempt to conduct a re-trial on the merits. It is not enough to express disappointment at the original decision, or a subjective feeling that justice has not been done. It must be shown, in a case like this where the Magistrate was obliged to decide between two conflicting versions of events and allegations of fact, that the choice he ultimately made had insufficient support in the evidence, or was irrational or wrong. Nothing in Mr Mitchell’s submissions is persuasive that something of that kind occurred here.
It is obvious Mr Mitchell is disappointed with the outcome of the proceedings. The fact is that the learned Magistrate preferred Ms Profke’s evidence about the nature of their relationship, and of the payments she had made in the past, to his evidence. Once that finding was made the Magistrate’s decision to dismiss the application, as one which did not fall for determination under the RTRA, was plainly correct.
In the circumstances the application for leave to appeal must be refused.
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