Narraglen Pty Ltd v Grand Huang Holdings Pty Ltd - [2013] QCATA 20

CITATION:

Narraglen Pty Ltd v Grand Huang Holdings Pty Ltd [2013] QCATA 20

PARTIES:	Narraglen Pty Ltd (Appellant)
v
Grand Huang Holdings Pty Ltd (Respondent)

APPLICATION NUMBER:

APL317-11

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Richard Oliver, Senior Member
David Paratz, Member

DELIVERED ON:

31 January 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

Leave to appeal is refused.

CATCHWORDS:

Residential tenancy – unfit for purpose – whether hearing was fair

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

Richard Oliver, Senior Member

In this matter the Appeal Tribunal consisted of Mr Paratz, QCAT Member and me. I have had the benefit of reading his reasons in draft. I agree with his reasons, his conclusions, and the orders he proposes.

Mr Paratz, Member

The Appellant, Narraglen Pty Ltd trading as Realty 2000 (‘Narraglen’) rented premises at Shop 2, 149 Scarborough Street, Southport from the Respondent, Grand Huang Holdings Pty Ltd (‘Huang’).
Narraglen filed an Application on 4 April 2011 in the Southport Registry, as an ‘Application for minor civil dispute – residential tenancy dispute’ seeking compensation of $25,000 for financial loss and distress arising from maintenance and structural issues with the property.
A preliminary issue as to the jurisdiction of the Tribunal to hear the matter as a residential tenancy was determined on 23 June 2011, and it was held that the Tribunal did have jurisdiction.
The matter was heard at Brisbane on 21 July 2011. Oral evidence was given by Mrs Florencia Mercer and Mr Thomas Mercer for Narraglen, and by Mrs Huang (through an interpreter, Ms Lieu) for Huang.
The learned Adjudicator reserved her decision, and delivered it on 8 August 2011. She dismissed the claim by Narraglen.
The case put forward by Narraglen was that the premises were unfit for use over a period of 9 years during which they leased them, and claimed compensation in relation to a period from 1 June 2007 to 30 May 2009 when they claimed they had to leave the premises because they were unfit to use.
The learned Adjudicator placed great weight on a statutory declaration made by Kirsty Lutze (who was sub-letting the restaurant in the same building), and found that Narraglen had tried to mislead the Tribunal by failing to disclose that it had sub-let the premises to other tenants during the period for which they were claiming compensation. She found that because of this, she could not accept the evidence of Mr and Mrs Mercer.
The learned Adjudicator also found the evidence of Mr and Mrs Mercer to be unbelievable as they had continued to reside in the premises for 9 years despite the problems being as bad as they claimed. She noted that it was only after they were told that the landlord would not be renewing the lease that they made their claim.
Further, the learned Adjudicator referred to s 419(3) of the Residential Tenancies and Rooming Accommodation Act 2008 which requires a claim for breach of a term of a residential tenancy agreement to be brought within 6 months after the tenant becomes aware of a breach. She found that this claim arose perhaps up to 9 years prior to the institution of proceedings, and at least 4 years prior, and that on this basis the claim was out of time and must be struck out.
Narraglen filed an application for leave to appeal on 30 August 2011. Their grounds for appeal are as follows:
We, Narraglen Pty Ltd did not get an opportunity to respond to the defendant’s accusations, conclusions and untruths either during or after proceedings. We also enquired at Southport Courthouse during the “Reserved Decision Period” as to whether or not we could or should provide more vital information regarding what had transpired at the hearing, and were told “no” that we just had to wait for the decision first, “which we respected”, meanwhile Grand Huang Holdings Pty Ltd were busy providing misleading evidence to the court, with very little if any factual credible evidence, which the Court has relied on to make a decision. We, Narraglen request a copy of that correspondence faxed to Honour, Judge Christine Trueman dated 4^th August 2011 so that we can answer each vital point directed at us by the defendant Grand Huang Holdings Pty Ltd.
The learned Adjudicator is required to have regard only to evidence presented at the hearing. I have read the transcript of the hearing and listened to the recording of her reasons for decision. She makes no reference to any material received from Huang after the conclusion of the hearing. There is no basis to conclude that she took any such material into account.
In a submission filed on 18 October 2011, Narraglen refers to the conduct of the hearing and says at the bottom of page 4 that:
Also during this time as Narraglen Pty Ltd remained silent, listening carefully to Grand Huang’s responses, accusations, conclusions and untruths, we were quite stunned at what was being stated by Grand Huang Holdings Pty Ltd and couldn’t wait to get a chance to respond, then suddenly Judge Trueman stated that the court needed to “have a break”, at that stage, which was fair enough due to the time in court, a decision which Narraglen Pty Ltd duly respected over our immediate feelings to respond to Grand Huang’s accusations. Narraglen Pty Ltd thought that there would be a short break in proceedings but then as we were about to leave the courtroom, Judge Trueman stated that she would let us know of her decision. We were really taken by surprise with this abrupt end to proceedings and felt cheated in not having the chance to respond to what had transpired.
If what Narraglen described had occurred, then there would be genuine concern as to the fairness of the proceedings, and this appeal would be well founded and would succeed, and a new hearing would be required. However, the transcript of the hearing shows that what actually occurred was quite different to what Narraglen alleges.
Evidence was first given by Mr and Mrs Mercer. At the conclusion of their evidence the learned Adjudicator said at page 23:
So I’ll conclude your evidence now, but of course you have a chance to say something before we finish up today, I’ll hear now from the respondent.
Evidence was then given by Mrs Huang. At the conclusion of her evidence, the following exchanges took place at page 35:
Adjudicator: We need to finish up soon, otherwise I’m going to have to adjourn, have a break and come back because we’ve already gone well over our timeframe; anything further?
Ms Lieu: No, your honour.
Adjudicator: Mr and Mrs Mercer, if you’re going to provide more evidence, is it going to take more than five minutes. We do need to take a break because security has been up here and my clerk needs to have lunch and its taken too long. Is there anything that you want to add that you haven’t said already that is relevant that I need to hear evidence on?
Mrs Mercer: We will respond to all those things.
Adjudicator: You don’t need to respond to all those things, only to what you haven’t given evidence about already.
(Mrs Mercer then talks about plumbing and electrical problems)
Adjudicator (page 36): I’ve already heard this evidence. I only want to hear anything that you haven’t said. I don’t want to sit here for another half an hour and hear things you’ve already said. I think your evidence is very clear.
(Mrs Mercer then talks about the sub-tenants)
Adjudicator: Yes, all right, nothing further. So my decision will be reserved and I’ll have a decision out to you in due course. Thank you parties for your attendance today.
It is clear that the learned Adjudicator heard from both parties, and gave Narraglen an opportunity to comment at the end of Huang’s evidence. She then concluded the hearing in an orderly manner. I am satisfied that the hearing was conducted in a fair manner.
Because this is an appeal from a decision of the tribunal in its minor civil dispute jurisdiction, leave is necessary. Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?

The learned Adjudicator found against Narraglen in law, and on the basis of a lack of credibility of its witnesses.

Narraglen failed to substantiate its claim. I do not consider there was any injustice caused to Narraglen, and there is no reason to grant leave to appeal.

Leave to appeal is refused.