Perfrement v Pupillo

[2010] QCATA 108

CITATION: Perfrement v Pupillo & Anor [2010] QCATA 108

PARTIES:	Mrs Rina and Mr John Perfrement (Applicants/Appellants)
v
Mr Salvatore Pupillo and Ms Kylie Moir (Respondents)

APPLICATION NUMBER:            APL275-10   

MATTER TYPE: Appeal

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON:   10 December 2010

DELIVERED AT:   Brisbane

ORDERS MADE:  Application for leave to appeal is refused     

CATCHWORDS : 

RESIDENTIAL TENANCIES – FINDINGS OF FACT – COMPENSATION – LOSS OF AMENITY – where adjudicator awarded compensation to respondents for loss of amenity – where appellants allege adjudicator made wrong findings of fact – whether any error of fact – whether leave should be granted

Queensland Civil and Administrative Tribunal Act 2009, s 142(3)

Chambers v Jobling (1986) 7 NSWLR, cited

Dearman v Dearman (1908) 7 CLR 549, cited

Fox v Percy (2003) 197 ALR 201, cited

Maynard v West Midlands Regional Health

Authority [1984] 1 WLR 634, cited

APPEARANCES and REPRESENTATION (if any):

By order of the Appeal Tribunal the application for leave to appeal (and appeal, if leave is granted) were directed to be determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. This application arises from a decision of a QCAT Adjudicator in the Minor Civil Disputes jurisdiction awarding compensation to Mr Salvatore Pupillo and Kylie Moir for loss of amenity during their tenancy at premises in Hermitage Place, Morayfield, managed by Elders Real Estate Ningi.

1. Ms Deborah Ryan, the property manager, has filed an application for leave to appeal that decision on behalf of Mrs Rina and Mr John Perfrement, presumably the owners. Leave is necessary: Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), s 142(3)(a)(i).

1. 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 reasonable prospect of 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?

1. Ms Ryan has filed lengthy and detailed submissions questioning the various findings made by the adjudicator. It is not necessary to repeat them here, and sufficient to say that each matter raised in the submissions was thoroughly ventilated at the hearing.

2. My sole duty here 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.[1]

   [1]           Fox v Percy, supra, at 210

3. The transcript of proceedings shows that the learned adjudicator gave the parties ample opportunity to address each contentious issue. He also had the advantage of evaluating the evidence first hand, sometimes referred to as the ‘feeling’ of the case which this appellate Tribunal, limited to the transcript, cannot fully share[2].

   [2]        Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 at 637;

4. On any view the learned adjudicator’s reasons reflect a clear and logical response to the evidence. I am unable to find anything in the transcript or in the evidence to suggest that the learned adjudicator’s findings were plainly wrong or not reasonably open, and nothing in Ms Ryan’s submissions points to any compelling inferences to the contrary.   

1. Ms Ryan, then, is not unable to point to any error in the learned adjudicator’s decision, and there is no question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage. For these reasons, leave to appeal should be refused.

          Chambers v Jobling, supra, at 25