Mayastor Pty Ltd v Ha Bachrach (Nom.) Pty Ltd
[2011] QCATA 115
•13 May 2011
| CITATION: | Mayastor Pty Ltd v HA Bachrach (Nom.) Pty Ltd [2011] QCATA 115 |
| PARTIES: | Mayastor Pty Ltd (Applicant/Appellant) |
| v | |
| HA Bachrach (Nom.) Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL330-10 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President Susan Gardiner, Member |
| DELIVERED ON: | 13 May 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Application for leave to appeal on mixed grounds of fact and law refused; and, 2. Appeal on question of law refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – RETAIL SHOP LEASE – where accounting issues because of change of lessor during lease – where refusal by new lessor to accept renewal option – where appeal on lack of procedural fairness and questions of law and fact – whether fair wear and tear – whether leave should be granted Queensland Civil and Administrative Tribunal Act2009, ss 28, 29 Retail Shop Leases Act 1994 Kioa v West (1985) 159 CLR 550, cited |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers, pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
President:
In this matter the QCAT Appeal Tribunal was comprised of Ms Susan Gardiner and me. I have had the benefit of reading her reasons, in draft. I agree with them, and her conclusions, and the order she proposes.
Member Susan Gardiner:
Mayastor Pty Ltd leased premises from HA Bachrach (Nom.) Pty Ltd at 64 Astor Terrace in Brisbane from 1 September 2004, for a term expiring on 31 August 2009 but with a five year renewal option.
Issues about the tenancy arose between the parties and on 13 and 14 September 2010 a hearing was conducted before three experienced Tribunal Members.
The issues between the parties at that hearing were summarised in the Tribunal’s published reasons:
(a) The condition of the door of the premises, and whether that was caused by the tenant or through fair wear and tear;
(b) Whether HA Bachrach had invoiced Mayastor for outgoings in excess of Mayastor’s liability under the lease;
(c) Whether HA Bachrach’s refusal to accept the renewal of the lease was valid; and
(d) Whether there was any balance of a security deposit (and interest thereon) repayable to Mayastor.
In reasons given orally at the conclusion of the second day of the hearing the Tribunal, having considered the evidence and the submissions made by both parties, made findings on each of these issues. The Tribunal ultimately dismissed the application and made no order as to costs.
Mr Peter Ingall, on behalf of Mayastor, seeks leave to appeal that decision.
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 [13].
[3]QUYD Pty Ltd v Marvass Pty Ltd (supra).
[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 Ingall, in the application and his submissions to this Appeal Tribunal, seeks to:
(a) Assert a denial of natural justice because of procedural matters that arose during the hearing. In particular, Mr Ingall points to the admission of evidence that was in his view ‘late’ and that ‘surprised’ him; and to the failure of the Tribunal to allow him to tender rebuttal evidence or to cross-examine the representatives of HA Bachrach;
(b) Assert errors of fact and law by the Tribunal because it:
[a] Failed to examine issues and make findings in relation to many grounds set out in Mayastor’s initiating application;
[b] Failed to make findings in relation to the application of specific sections of the Retail Shop Leases Act 1994;
[c] Made findings of fact against the evidence or failed to make findings on particular matters.
I accept the first ground involves a question of law.[5] The matters asserted by Mr Ingall, if correct, go to questions of procedural fairness but, as Mason J (as his Honour then was) observed in Kioa v West,[6] the requirements of procedural fairness must be adjusted to the statutory framework governing the Tribunal in question:
What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision-maker is acting (R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group;[7] National Companies and Securities Commission v News Corporation Ltd[8]).
In this respect the expression ‘procedural fairness’ more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations …
[5]Section 29 of the QCAT Act requires the Tribunal to take all necessary steps to ensure a party understands Tribunal practices and procedures; the nature of assertions made in the proceedings, and their legal implications; and, any decision the Tribunal makes.
[6](1985) 159 CLR 550 at 584-585.
[7](1969) 122 CLR 546 at 552-3.
[8](1984) 156 CLR 296 at 311, 319-321.
Nothing in the transcript of the hearing, on either of its two days, supports Mr Ingall’s contention; in particular, early in the hearing on the first day Mr Ingall specifically made no objection to the admission of one exhibit and at all other times, when exhibits were admitted, raised no objection to their admittance into evidence before the Tribunal.
The transcript also shows that where there is any concern by the Tribunal that either party would be put at a disadvantage over material being produced either late or at the request of the Tribunal (for example, an income receipt and allocation document), both parties were allowed time (in one case overnight) to ask questions and present submissions on the particular piece of evidence.
The transcript does not provide any support for Mr Ingall’s contention that he was either surprised or disadvantaged by the conduct or decisions of the Tribunal during the hearing. I am satisfied that the Tribunal took all reasonable steps in the context of this hearing to satisfy the requirements of s 29 of the QCAT Act.
Mr Ingall’s second ground asserts errors of law by the Tribunal through an alleged failure to address all his issues, or make findings about all his grounds of appeal. He also alleges the Tribunal failed to make findings in relation to specific sections of the Retail Shop Leases Act 1994 or on particular matters.
Section 28 of the QCAT Act positively requires that the Tribunal must act with as little formality and technicality as possible but with as much speed as is permitted, in the conduct of proceedings. This is in keeping with the objects of the QCAT Act[9] to deal with matters in a way that is accessible, fair, just, economical, informal and quick.
[9]QCAT Act, s 3.
In doing so, the Tribunal will, in most matters, be dealing with parties who are not legally represented. It is the Tribunal’s responsibility to identify those parts of an unrepresented party’s application and submissions that are relevant to the issues identified in the matter, and to deal with those parts. It is not necessary for the Tribunal to deal with all parts of an application and submissions – only those relevant to the issues in the matter.
Finally, Mr Ingall also asserts, as a matter of law, that the Tribunal made findings of fact against the evidence (for example, errors in findings about a security deposit). Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[10]
[10]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 197 ALR 201 at 207, 208.
There is no demonstrated or discernable error in the Tribunal’s decision. Nor is there any question of importance about which further argument, and a decision of the Appeal Tribunal, would be of public advantage.
There is no basis upon which leave to appeal is warranted; and, the appeal on the basis of a want of procedural fairness must also fail.
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