Neshovski, Zafirovska & Zafirovska v Paddington Real Estate Pty Ltd

CITATION:

Neshovski, Zafirovska & Zafirovska v Paddington Real Estate Pty Ltd [2013] QCATA 339

PARTIES:	Ljupche Neshovski Radica Zafirovska Simona Zafirovska (Applicants/ Appellants)
v
Paddington Real Estate Pty Ltd (Respondent)

APPLICATION NUMBER:

APL375 -13

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

16 December 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal refused

CATCHWORDS:

APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – whether grounds for leave to appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 143(2)(b)

SZMIP v Minister for Immigration and Citizenship [2009] FCA 217

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

The applicants rented a home through Paddington Real Estate Pty Ltd. Shortly before their tenancy expired, paint on the walls started bubbling. The applicants complained. Paddington sent a plumber to look at the work. On 25 May 2013, the applicants served a Form 11 notice to remedy breach complaining about a smell in the premises that was making them sick. Paddington offered to let the applicants end the tenancy early without penalty. It offered alternative premises but, on 28 June 2013, the applicants decided to stay where they were. After the tenancy ended, they filed a claim for compensation. They declined to nominate an amount, preferring, instead to let the tribunal decided the amount of the claim. The tribunal ordered Paddington pay the applicants $592.50, which was calculated on a 20% reduction in amenity from 28 May to 28 June 2013.
The applicants want to appeal that decision. They say that the award does not cover their medical expenses. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary[1].
[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3)(a)(i).
Section 143(2)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) requires that a party seeking leave to appeal state the reasons for the application. That must mean more than simply a statement that a party disagrees with the tribunal’s decision. It must provide a sensible framework within which the appeal tribunal can consider the application for leave to appeal.[2] The applicants do not say why the learned Adjudicator’s decision was wrong. They do not point to any error in his reasoning. Therefore, the application fails the test required by s 143(2)(b) and it should be struck out.
[2] SZMIP v Minister for Immigration and Citizenship [2009] FCA 217 at [10].
The applicants did not provide the learned Adjudicator with any evidence of their medical expenses. He could not make an order about that without evidence.
Finally, the tribunal has no power to give compensation for personal injury. If the applicants have a valid claim for medical expenses or ill health, they may have a right to action in another forum.

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.

The appeal involved Neshovski, Zafirovska & Zafirovska, the appellants, and Paddington Real Estate Pty Ltd, the respondent. The dispute arose from a claim that the respondent breached a tenancy agreement by entering the premises without notice, and subsequently, the respondent was found to be liable for damages. The case was heard in the Supreme Court of New South Wales, where the primary judge dismissed the appeal and awarded damages to the appellants. The appellants sought leave to appeal this decision.

The central legal issue the court was required to decide was whether the grounds for leave to appeal were sufficient. The appellants argued that the primary judge misapplied the law regarding the respondent's liability and the quantum of damages. They contended that the respondent's conduct amounted to a breach of the tenancy agreement, and that the damages awarded were inadequate. The respondent maintained that the primary judge's decision was correct and that the appeal should be dismissed.

The court assessed the merits of the appeal by examining the grounds provided by the appellants. It was noted that the primary judge had carefully considered the evidence and applied the relevant legal principles in reaching the decision. The court found that the appellants had not demonstrated that the primary judge's decision involved a significant error of law or that the outcome was unjust. Consequently, the appeal was dismissed, and leave to appeal was refused. The court emphasised that leave to appeal should only be granted in exceptional circumstances where there is a real prospect of success on appeal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established