Pryor v Ray White Hervey Bay

CITATION:	Pryor v Ray White Hervey Bay [2015] QCATA 151
PARTIES:	Helen Pryor (Applicant/Appellant)
v
Ray White Hervey Bay (Respondent)

APPLICATION NUMBER: APL115-15

MATTER TYPE: Appeal

HEARING DATE: 30 June 2015

HEARD AT: Brisbane

DECISION OF: Justice Carmody

DELIVERED ON: 30 July 2015

DELIVERED AT: Brisbane

ORDERS MADE:

THE ORDER OF THE TRIBUNAL IS THAT

1.    Leave to appeal is refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – RESIDENTIAL TENANCIES – where the applicant unsuccessfully filed an application in the Magistrates Court for the recovery of part of a bond retained by the respondent for property damage allegedly sustained to a garage door – where the Acting Magistrate ordered that the portion of the bond retained for property damage to the garage door be disbursed to the respondent – where the applicant filed an appeal – whether the  Acting Magistrate erred in finding that property damage had been sustained by the garage door during the subsistence of the tenancy – whether the Acting Magistrate erred in failing to provide procedural fairness to the applicant by considering the request for the disbursement of the bond – whether the Acting Magistrate erred in accepting the oral testimony of an agent of the respondent – whether the Acting Magistrate erred failed to provide the applicant with procedural fairness by relying on a visual recording adduced by the applicant. 

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32

Briginshaw v Briginshaw (1938) 60 CLR 336.
Davidson v J S Gilbert Fabrications Pty Ltd (1986) 1 Qd R 1.
Fox v Percy (2003) 2014 CLR 118.
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378.
Pickering v McArthur [2005] QCA 294.
Slater v Wilkes [2012] QCATA 12.

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

1. The applicant challenges the correctness of a tribunal decision on the grounds that:

   1.the tribunal erred in finding that the garage door had sustained property damage caused during the tenancy of the applicant;

   2.the tribunal erred in failing to provide procedural fairness by considering the respondent’s request for compensation for property damage sustained to the garage door, which was not raised in the originating application;

   3.the tribunal erred in accepting the oral testimony of the respondent; and

   4.the tribunal erred in failing to provide procedural fairness to a party by receiving evidence of a visual recording of the operation of the garage door, which had not been observed by the applicant.

2. Tribunal decisions are intended to be final and binding not merely provisional pending appeal or reconsideration.  The successful party is ordinarily entitled to the “fruits” of victory including full and effective compliance with the terms of favourable orders.

3. As a party to a minor debt proceeding the applicant cannot appeal a tribunal’s decision without leave or permission…