Pahwa v Avery - [2019] QCATA 153

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Pahwa & Anor v Avery & Ors [2019] QCATA 153

PARTIES: SURESH PAHWA

(first applicant/appellant)

LYNETTE PAHWA

(second applicant/appellant)

v

PETER JOHN AVERY

(first respondent)

JILL LESLIE AVERY

(second respondent)

BENJAMIN JOHN AVERY

(third respondent)

APPLICATION NO/S:

APL319-18

ORIGINATING APPLICATION NO/S:

Southport MCDT0383-17

MATTER TYPE:

Appeals

DELIVERED ON:

13 November 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member J R Forbes

ORDERS:
1.   The application to adduce new evidence is refused

2.   The application for leave to appeal is refused

3.   No order as to costs

CATCHWORDS:
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – TENANCY -– Residential Tenancies and Rooming Accommodation Act 2008 (Qld) – damage to tenants’ property caused by malfunction of hot water system and drains – whether landlord liable to compensate tenants for damage – where liability and quantum in dispute – whether applicant tenants complied with section 416 of RTA – where respondent landlords did not adduce quantum evidence at trial - whether leave to be given to adduce new evidence on quantum – whether new evidence qualifies as fresh evidence – whether application to adduce new evidence should be allowed – where application refused – whether primary decision affected by appellable error – where no error found – where application for leave to appeal refused.

Acts Interpretation Act 1954 (Qld) s 39A(1)(b)
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 4, s 32, s 61, s 123, s 142(3)(a)(i). 143(5)

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 399, s 403, s 416, 516

Abalos v Australian Postal Commission (1990) 171 CLR 167

Autodesk Inc v Dyason (No 2)(1993) 176 CLR 300
Avery & Ors v Pahwa & Anor [2018] QCATA 53.
Devries v Australian National Railways Commission (1993) 177 CLR 472

Fox v Percy (2003) 214 CLR 118

Green v Hatchy Investments Pty Ltd [2013] QCATA 274

Harrison & Anor v Schipp & Ors (2002)) 54 NSWLR 612
McDonald v McDonald (1965) 113 CLR 529

Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611

Warwick Real Estate & Property Sales Pty Ltd v Bailey & Morrow [2013] QCATA 262

APPEARANCES & REPRESENTATION :

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

The dispute arises

‘Catastrophic’ is the learned Adjudicator’s apt description of the scene at a home unit at Southport’s Main Beach on 13 September 2016.
A hot water tank on the upper floor burst, spilling its contents of some 350 litres, and a blocked drain pipe caused a sewage system overflow. The effluents invaded the upper floor and the one below, and the kitchen ceiling collapsed. Items damaged beyond repair included a considerable amount of furniture, the property of the tenants.
The unit was leased by the intending[1] Appellants (‘the Pahwas’) to the Respondents (‘the Averys’) from about August 2007 to mid-September…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pahwa v Avery

Details

AGLC: Pahwa v Avery [2019] QCATA 153
Case: [2019] QCATA 153
Decision Date: 13 November 2019

CaseChat Overview and Summary

Pahwa v Avery involved a dispute between the tenants, Pahwa, and the landlords, Avery. The dispute arose from damage to the tenants' property caused by a malfunction in the hot water system and the drains. The tenants sought compensation from the landlords under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). The tenants argued that the landlords were liable for the damage, while the landlords disputed both liability and the amount of damages. The primary issue before the court was whether the tenants had complied with the procedural requirements of section 416 of the RTA when they applied for leave to adduce new evidence on the quantum of damages. The landlords did not present any evidence of the quantum of damages during the trial. The tenants applied to adduce new evidence on the quantum of damages, but the landlords opposed this application. The landlords argued that the new evidence was fresh evidence and should not be allowed. The court found that the tenants had complied with the procedural requirements of section 416 of the RTA and refused the application to adduce new evidence. The court also found that the new evidence was not fresh evidence and should have been allowed. However, the application to adduce new evidence was still refused because the landlords did not show that the primary decision was affected by an appellable error. The court found no error in the primary decision and refused the application for leave to appeal. No order was made as to costs.

Orders

Orders of the court

1. The application to adduce new evidence is refused

2. The application for leave to appeal is refused

3. No order as to costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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