Mohammed v Amore-Cortez
[2012] QCATA 65
•30 April 2012
| CITATION: | Mohammed v Amore-Cortez [2012] QCATA 65 |
| PARTIES: | Khurram Mohammed (Applicant/Appellant) |
| v | |
| Bianca Amore-Cortez (Respondent) |
| APPLICATION NUMBER: | APL466-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 30 April 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal is refused |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE - RESIDENTIAL TENANCY – where the Applicant Landlord had sought rental arrears and costs for damage to the property – where the Respondent Tenant had brought a counter-application for compensation – where the Applicant was ordered to pay compensation to the Respondent – where the Applicant sought leave to appeal the order for compensation – whether the findings of fact made by the original Tribunal are surprising, or inherently improbable Queensland Civil and Administrative Tribunal Act 2009, ss 32, 142 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
Mr Mohammed owns a house at 54 Freshwater Drive, Douglas, North Queensland. Ms Amore-Cortez began to rent the premises from him in early 2010. Her tenancy was arranged through letting agents engaged by Mr Mohammed.
In September 2011 he began proceedings against her seeking rental arrears and the costs of alleged damage to a pool, and a roller door. She brought a counter-application claiming compensation to which she was entitled, she said, because she had paid rent for a 4 bedroom house but cyclone damage had made one bedroom unusable.
A Magistrate sitting as a QCAT Member in the Tribunal’s Minor Civil Dispute jurisdiction commenced hearing the matter on 13 October 2011. Mr Mohammed was represented by real estate agents. The learned Magistrate adjourned the matter on that day to allow the parties to investigate some evidentiary questions that had arisen around the garage door and, in particular, the location of the remote control device for it; and, so that Ms Amore-Cortez could file her counter-application.
The case came back before the Magistrate on 18 November 2011 when he dismissed Mr Mohammed’s claims and ordered that he pay Ms Amore-Cortez compensation of $3,020. As part of that order he directed that the bond of $1,680 be dispersed to her.
Mr Mohammed seeks leave to appeal that decision. He says that finding a repairer for the damage to the property was difficult after the cyclone in the area but, when he did organise for a builder to view the property and provide a quote, that builder was unable to gain access because of a lack of cooperation from Ms Amore-Cortez. He also says that she did not pay her rent for two weeks prior to vacating and the decision should have reflected that debt.
A transcript of the proceedings before the learned Magistrate on 18 November 2011 has been obtained. It shows that he carefully traversed the evidence from both Mr Mohammed’s agent and Ms Amore-Cortez about each of the issues in the matter and then gave comprehensive and, with respect, clear reasons for his decision to award compensation to her.
The reasons show each of the issues was carefully considered: first, it was clear that the only evidence about the whereabouts of the remote control came from Ms Amore-Cortez and, having no reason to doubt that evidence, the learned Magistrate unsurprisingly accepted that she had left the device at the premises when she quit them.
As to the landlord’s allegation that she had failed to maintain the pool, the learned Magistrate also accepted her evidence that she had, during the course of the tenancy, a number of problems with the operation of the pool pump which she had reported to the landlord’s previous agent, but without any satisfactory response. The learned Magistrate correctly observed that the landlord had an obligation to satisfy him, on the balance of probabilities, that the work was necessary because of some failure on the tenant’s part to maintain the pool, and he was not persuaded to that conclusion. Again, his reasons are clear, and unexceptionable.
As to the tenant’s claim for compensation, the Magistrate accepted Ms Amore-Cortez’s evidence that the agents knew of damage to the premises caused by Cyclone Yasi and the fact that she was unable to use one of the bedrooms but that, despite her complaints, no repairs were affected and in fact her rent was increased. She also produced evidence about a fair basis for the compensation claim, which was also accepted.
Mr Mohammed has now produced, with his application for leave to appeal, a message from a builder dated 12 May 2011 to the effect that the builder had arranged a meeting to inspect the premises but ‘the tenant wasn’t there’. It is not at all clear, from the message, that the tenant’s absence was attributable to any fault or blame on her part. It is also to be observed that this document does not seem to have been presented to the learned Magistrate at the hearing. As observed in his Reasons, the agents who represented Mr Mohammed at the hearing were short of advice or instructions from the landlord.
In our legal system Appeal Courts and Tribunals are often reluctant to interfere with what are called ‘credit’ findings – findings about which evidence, from which parties or witnesses, ought to be believed – by the original decision maker, who had the advantage of hearing personally from, and seeing, the parties. That does not excuse the Appeal Tribunal from interfering, however, if the findings of fact made by the original Tribunal are surprising, or inherently improbable.
This is not a case in which questions or concerns of that kind even arise. As the transcript shows, the only useful evidence before the learned Magistrate came from Ms Amore-Cortez and, in the absence of any conflicting evidence presented by Mr Mohammed’s agents, or any inconsistencies in, or doubts that could have arisen from, Ms Amore-Cortez’s evidence, the learned Magistrate was quite entitled to make the findings that he did. Indeed, it would have been surprising had he reached any other conclusion.
There is nothing to suggest that the message from the builder that Mr Mohammed now seeks to put before the Appeal Tribunal was not available at the time of the original hearing. The legal principle that parties cannot, in effect, fail to put evidence before the original court or tribunal and save it, as it were, for presentation later to an Appeal Tribunal is unsurprising, and a matter of common sense. If the matter was important, Mr Mohammed should have made sure it was provided to the Magistrate.
In any event, it is unlikely the message would have made any difference to the learned Magistrate’s decision. It does not suggest, and is not proof, that Ms Amore-Cortez’s absence at the time the builder called in to inspect the premises occurred through any fault, or lack of co-operation, on her part.
All of these circumstances show there is no basis for interfering with the learned Magistrate’s decision. In any event, this is a case in which Mr Mohammed could only bring an appeal if he first obtains this Appeal Tribunal’s leave to do so: Queensland Civil and Administrative Tribunal Act2009, s 142(3)(a)(i). 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.
Mr Mohammed’s application for leave to appeal does not attempt to address any of these questions. If does not appear that he is a lawyer, and I appreciate that some legal complexity can attach to things like a requirement for ‘leave’ – but, even so, nothing in his submissions suggests that the operation of any of these principles, in his favour, is attracted.
Nothing in the material warrants, then, a grant of leave to appeal and his application must be dismissed.
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