Ray White Hervey Bay v Pringle
[2014] QCATA 254
•29 August 2014
| CITATION: | Ray White Hervey Bay v Pringle & Ors [2014] QCATA 254 |
| PARTIES: | Ray White Hervey Bay (Applicant/Appellant) |
| v | |
| Vanitta Pringle Logan Hunter Painten Hunter (Respondents) |
| APPLICATION NUMBER: | APL022 -14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Thomas, President |
| DELIVERED ON: | 29 August 2014 |
| DELIVERED AT: | Brisbane |
| ORDER MADE: | The application for leave to appeal is refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCIES – where claim for repainting tenancy – where evidence that original paint of poor quality – where Magistrate refused claim – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 142(3)(a)(i) Chambers v Jobling (1986) 7 NSWLR 1, cited |
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
When Vanitta Pringle, Logan Hunter and Painten Hunter left their tenancy, there were two outstanding maintenance issues. One was a broken door, and the tenants agreed to pay the cost of that repair. The other issue was the state of the painting throughout the tenancy. Ray White Hervey Bay filed a claim for $910 for the cost of repainting damaged walls and doors. A Magistrate, sitting as a Member of the tribunal, dismissed that claim.
Ray White Hervey Bay seeks to appeal that decision on the basis that the learned Magistrate made incorrect findings of fact, because he did not look at the photographic evidence properly.
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][2005] QCA 294 at [3].
The learned Magistrate told the parties that the value of entry and exit reports, which had been supplied with the parties’ material, was limited where one party was absent, and hadn’t signed them.[3] He stressed the importance of photographic evidence in a dispute such as this, and said that it was “the only way that we can really get some proper assistance”.[4] During the hearing, he referred to photographic evidence three times,[5] and asked the representative for the applicant, Ms McCabe, whether they had any photographic material, to which Ms McCabe replied that it should have been included with their application, but the Magistrate could not find them on the file.[6] Ms Pringle also told the learned Magistrate she had not seen any photographs from Ray White Hervey Bay.[7] The obvious conclusion is that the learned Magistrate did not have any photos from Ray White Hervey Bay.
[3]Transcript page 1-4, lines 25-26.
[4]Transcript page 1-4, lines 32-33.
[5]Transcript page 1-4, line 32; page 1-5, line 32; page 1-7, lines 15-16.
[6]Transcript page 1-7, lines 15-16.
[7]Transcript page 1-7, lines 21-22.
Ray White Hervey Bay has provided a packet of photos with its submission to the appeal tribunal. 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?[8]
[8]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.
The photos are date stamped 31 May 2013. Ms McCabe made no effort to produce the missing photos at the hearing, which took place on 15 October 2013, when the learned Magistrate told her there were no photos on file. Ray White Hervey Bay does not explain what happened to the photos, or whether it ever filed photos in the file before the learned Magistrate. Ray White Hervey Bay has provided no explanation as to why these photos were not before the learned Magistrate.
The learned Magistrate’s reasons for decision were terse; however, he did not have a wealth of evidence to rely upon. Clearly enough, he relied on a report from PPG Industries Australia Pty Limited asserting that the paint was of poor quality. The photos Ray White Hervey Bay wants the appeal tribunal to accept do not address this issue. The fresh evidence should not be admitted and the application for leave to appeal should be determined on the evidence before the learned Magistrate.
The appeal tribunal will not usually disturb findings of fact on appeal if it considers the conclusions of the decision maker below were able to be made on the evidence which was before them,[9] however may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[10] There is nothing in the material to persuade me that the findings of learned Magistrate were not open on the evidence.
[9]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[10]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
There is no reasonably arguable case that the learned Magistrate was in error. Leave to appeal should be refused.
0
4
0