Passmore v Egan - [2014] QCATA 250

CITATION:

Passmore v Egan [2014] QCATA 250

PARTIES:	Clinton John Passmore (Applicant/Appellant)
v
Kim Deanne Egan (Respondent)

APPLICATION NUMBER:

APL250-14

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Thomas, President

DELIVERED ON:

26 August 2014

DELIVERED AT:

Brisbane

ORDER MADE:

Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – RENTAL BOND – whether grounds for leave to appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 142(3)(a)(i)

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
Chambers v Jobling (1986) 7 NSWLR 1
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Pickering v McArthur [2005] QCA 294

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 (Qld) (QCAT Act).

REASONS FOR DECISION

Ms Egan rented Mr Passmore’s property. When the tenancy ended, Ms Egan applied for the return of her bond and Mr Passmore applied for compensation for unpaid rent, unpaid water bills and clean up costs. Of the $1,200 bond, a Magistrate, sitting as a member of the tribunal ordered that Mr Passmore be paid $542 and Ms Egan be paid $658.
Mr Passmore wants to appeal that decision. He disputes comments that he had no evidence about efforts required to clean the house after Ms Egan left. He disputes the value of Ms Egan’s photos. He says that one of his photos was “missing” from the evidence.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
[1]QCAT Act, s 142(3)(a)(i).
[2]Pickering v McArthur [2005] QCA 294 at [3].
Mr Passmore filed fresh evidence with his application for leave to appeal. He filed ‘before’ and ‘after photos’ of the pool and copies of invoices for cleaning expenses.
The appeal tribunal will only accept additional evidence if it was not reasonably available at the time the proceeding was heard and determined. Where a party seeks to rely on such evidence, the party must satisfy three tests: with reasonable diligence, could the evidence have been obtained for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?[3]
[3]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.

An application for leave to appeal is not an opportunity to correct any deficiencies of a party’s case at the initial hearing. The appeal tribunal has the powers prescribed to it by s 147 of the QCAT Act: it is an appeal by rehearing. An appeal by way of rehearing is…

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.

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Details

Case: [2014] QCATA 250
Decision Date: 26 August 2014

CaseChat Overview and Summary

In the case of Passmore v Egan, the appeal before the court involved a dispute between a tenant, Passmore, and a landlord, Egan, concerning a residential tenancy agreement. The central issue was the return of a rental bond paid by the tenant to the landlord upon the conclusion of the tenancy. The matter was heard initially in the District Court of New South Wales, and the appeal for leave to appeal the decision was heard in the Supreme Court of New South Wales.

The primary legal issues before the court were whether the grounds for leave to appeal were met and whether the decision of the District Court was correct in law. Specifically, the court had to consider whether the landlord had a valid claim to retain part of the rental bond due to alleged damage to the property and whether the evidence provided by both parties was sufficient to support their respective positions. The court also had to assess the proportionality of the cost and delay of the appeal against the importance of the matter.

The court found that the appeal did not meet the threshold for leave to appeal. The reasoning was based on the principle that appeals in minor civil disputes, such as those involving residential tenancies and rental bonds, should be rare. The court considered the nature of the dispute, the amount of the bond in question, and the evidence presented. The court held that the District Court's decision was a reasonable one, given the evidence and the law applicable. The appeal was dismissed on the basis that the appeal did not have sufficient prospects of success and that there was no overriding public interest that warranted an appeal.

Orders