Munton v Edelsten
[2013] QCATA 163
•11 June 2013
| CITATION: | Munton & anor v Edelsten [2013] QCATA 163 |
| PARTIES: | David James Munton & Erin Callow (Applicant/Appellant) |
| V | |
| Rebecca Jane Edelsten (Respondent) |
| APPLICATION NUMBER: | APL005 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 11 June 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.
REASONS FOR DECISION
Mr Munton and Ms Callow were tenants in a house owned by Ms Edelsten. They had issues with both the house and Ms Edelsten. They claimed that the water supply was contaminated and the oven did not work properly. They objected to photos of the house being published on the internet in advertisements for the sale of the house because the photos showed their personal possessions. They objected to prospective purchasers accessing the house without proper notice. They claimed that Ms Edelsten gave a notice to leave in retaliation for their complaints. They also claimed for the cost of repairs for which Ms Edelsten had not paid them.
The tribunal ordered Ms Edelsten pay the cost of repairs, plus compensation for the contaminated water and the faulty oven. The tribunal also ordered that Ms Edelsten ensure photographs of the house were removed from the internet within 48 hours.
Mr Munton and Ms Callow want to appeal the learned adjudicator’s decision. They say that he refused to view evidence relating to matters before him, some of which proved that Ms Edelsten was in contempt of court. They say that the compensation ordered was “well short” of the severity of Ms Edelsten’s breaches. They say that the learned adjudicator did not make orders about the unlawful entry or payment of further repairs. They say that Ms Edelsten did not comply with the order to remove the photos from the internet.
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.
The appeals tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[5] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[6] 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.[7]
[5]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[6] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[7] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
I have listened carefully to a transcript of the hearing. The learned adjudicator received evidence about those matters that were issues for him to decide. He did not consider evidence about the entries without notice because, as he observed[8], they were not breaches that translated into money. He did not consider evidence about whether the notice to leave was retaliatory because, as he said[9], Mr Munton and Ms Callow were leaving anyway and they no longer wanted to set that notice aside. The learned Adjudicator did not consider breaches of the tenancy agreement that happened relatively recently and were not the subject of the dispute resolution referral to the Residential Tenancies Authority. That is the correct approach.
[8] Transcript at 20:01.
[9] Transcript at 20:44.
The amount of compensation payable for Ms Edelsten’s breaches is a matter on which reasonable minds may differ. I understand that Mr Munton and Ms Callow think that they should be paid more but I have considered the material before the learned Adjudicator and I can find no compelling reasons to come to a different view. The learned adjudicator discussed the further compensation options available to Mr Munton and Ms Callow.[10] Nothing in the tribunal proceedings prevents them from taking further action.
[10] Transcript at 22:23.
If Ms Edelsten is in breach of the learned Adjudicator’s order to remove the photos, the solution lies elsewhere, as the learned adjudicator discussed.[11] The tribunal has no power to enforce its orders. A party’s failure to comply with orders is not a valid ground for appeal.
[11] Transcript at 26:30.
There is no question of general importance that should be determined by the appeals tribunal. There is no reasonably arguable case that the learned Adjudicator 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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