Ocean Blue (Qld) Realty v Widdup
[2011] QCATA 216
•16 August 2011
| CITATION: | Ocean Blue (QLD) Realty v Widdup [2011] QCATA 216 |
| PARTIES: | Ocean Blue (QLD) Realty |
| v | |
| Ian Widdup |
APPLICATION NUMBER: APL160-11
| MATTER TYPE: | Appeals |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Richard Oliver, Senior Member Peta Stilgoe, Member |
DELIVERED ON: 16 August 2011
DELIVERED AT: Brisbane
ORDERS MADE: Leave to appeal refused.
| CATCHWORDS: | MINOR CIVIL DISPUTE – where adjudicator delivered reasons in the absence of the parties – where original claim no longer relevant – where claim for abatement of rent – where tenant did not file claim for abatement of rent – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009, s 61 Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Chambers v Jobling (1986) 7 NSWLR 1 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Mr Oliver
In this matter the Appeal Tribunal consisted of Ms Stilgoe, QCAT Member and me. I have had the benefit of reading her reasons in draft. I agree with her reasons, and her conclusions, and the order she proposes.
Ms Stilgoe
Ocean Blue (QLD) Realty brought an application against Mr Widdup for a termination order, principally on the basis of arrears of rental. Before the hearing scheduled for 28 February 2011, Mr Widdup vacated the tenancy and paid his rent up to date. Ocean Blue sent a facsimile to the tribunal advising that the hearing was no longer necessary. Unfortunately, neither the tribunal nor Mr Widdup received that facsimile so the hearing proceeded. The tribunal ordered that the Residential Tenancy Authority pay the bond to Mr Widdup.
Ocean Blue succeeded in having that order set aside and the proceeding was listed for hearing. The learned Adjudicator heard the parties’ evidence on 7 April 2011 and delivered her decision on 8 April 2011. The learned Adjudicator found that Mr Widdup was responsible for payment of $770 compensation. The learned Adjudicator also found that Mr Widdup did not experience quiet enjoyment during his tenancy. She found that the compensation payable to Ocean Blue was fully offset by a rent reduction for the loss of quiet enjoyment. The learned Adjudicator ordered that the Residential Tenancy Authority pay the bond to Mr Widdup.
Ocean Blue has appealed the learned Adjudicator’s decision on these grounds:
a) Neither party was present when the learned Adjudicator handed down her decision.
b) The learned Adjudicator’s decision had no bearing on the original claim, therefore it was “incompetent and incorrect”.
c) Mr Widdup never filed a claim against Ocean Blue for any matter, Mr Widdup was the respondent and the purpose of the hearing was to address his default.
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 heard all the evidence on 7 April 2011. She made it clear at the conclusion of that hearing that she would adjourn the proceeding and reserve her decision.[1] The “hearing” on 8 April 2011 was limited to the learned Adjudicator reading her decision into the record. The parties’ attendance was not required as the learned Adjudicator did not need to hear from them. This process of recording a decision cannot be a ground for leave to appeal.
[1] Transcript page 30, lines 33-36.
I read the submission that the learned Adjudicator was “incompetent” as being a reference to her being unable to perform the task, rather than that she demonstrated a lack of skill in the performance of that task.
It is clear from the transcript that Ocean Blue did not consider the hearing on 7 April 2011 was about termination and the release of the bond. Ms Weston, on behalf of Ocean Blue asked for compensation of $2,039.72.[2] It was a hearing about compensation and Ocean Blue’s submission to the contrary is mischievous.
[2] Transcript page 3, lines 28-33.
Ocean Blue is correct in saying that Mr Widdup never filed a claim and, in particular, he never filed a claim about the loss of quiet enjoyment. Ocean Blue is not correct if it is claiming that it had no notice of Mr Widdup’s claim and, therefore, was not prepared to meet it at the hearing. Exhibit 2 on the tribunal’s file is an email string between the parties. On 8 February 2011, Mr Widdup wrote:
“i will be claiming an abatement of rent from the sixth of November when structural work commenced until it was completed
my son will seek seperate (sic) damages”
Ms Georgiou from Ocean Blue responded to that email. There is no doubt that Ocean Blue was aware of Mr Widdup’s proposed claim.
Section 61 of the Queensland Civil and Administrative Tribunal Act 2009 allows the tribunal to waive compliance with procedural requirements under the Act or an enabling Act. It is implicit from the transcript that the learned Adjudicator did waive the requirement that Mr Widdup file a claim for compensation. Given that Ocean Blue had notice of Mr Widdup’s proposed claim, and it did not ask for an adjournment at the hearing, it cannot now argue that it was unfair for the hearing to proceed in that way.
Ocean Blue now wants to file additional evidence in relation to Mr Widdup’s claim for loss of enjoyment. An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party’s case at the initial hearing.
The tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined[3]. For the reasons already expressed, I am not persuaded by Ocean Blue’s explanation as to why this material was not available earlier. The new evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Adjudicator.
[3] ss 137 and 138 QCAT Act.
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.[4]
[4]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.[5] 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.[6]
[5] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[6] Fox v Percy supra at 128 per Gleeson CJ, Gummow and Kirby JJ.
My sole duty is to determine whether there is an error in the primary decision. It is not my task to decide where the truth lay as between the competing versions given by the parties.[7] There is nothing in the transcript that persuades me that the learned Adjudicator should have taken a different view of the facts.
[7] Fox v Percy supra at 129 per Gleeson CJ, Gummow and Kirby JJ.
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; and 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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