Ray White Shailer Park v Walters
[2011] QCATA 352
•15 September 2011
| CITATION: | Ray White Shailer Park v Walters and Anor [2011] QCATA 352 |
| PARTIES: | Ray White Shailer Park |
| v | |
| Mr Stephen Walters Mrs Valerie Walters |
APPLICATION NUMBER: APL235-11
| MATTER TYPE: | Appeals |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Peta Stilgoe, Acting Senior Member |
DELIVERED ON: 15 September 2011
DELIVERED AT: Brisbane
ORDERS MADE: Leave to appeal refused.
| CATCHWORDS: | MINOR CIVIL DISPUTE – TENANCY – where claim for compensation for leaking shower affecting bathroom and adjacent bedroom – where claim for compensation for landlord’s failure to attend to garden maintenance in accordance with agreement – where landlord’s agent appeared at hearing – where landlord filed fresh evidence – whether fresh evidence should be accepted – whether landlord had opportunity to be heard – whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Chambers v Jobling (1986) 7 NSWLR 1 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Mr and Mrs Walters were tenants in a property managed by Ray White Shailer Park. They brought an application in the tribunal for compensation and a reduction in rent because of a lack of garden maintenance and a leaking shower that affected both the bathroom and the adjacent bedroom. The tribunal hearing was conducted in two parts and all parties were represented at both hearings. At the conclusion of the hearing, the learned Adjudicator ordered Ray White to pay Mr and Mrs Walters $1,572 for loss of amenity and reduced the rent payable to $615 per week.
Ray White has appealed the learned Adjudicator’s decision on these grounds:
a) The amount of compensation to Mr and Mrs Walters is grossly excessive because they exaggerated their claims.
b) Ray White would like the opportunity to be heard on the question of compensation.
Because this is an appeal from a decision of the tribunal in its minor civil dispute jurisdiction, leave is necessary. 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 a reasonable prospect that 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?
Ray White has filed material with its application for leave to appeal that was not available to the learned Adjudicator. The appeal tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined[1]. Ordinarily, an applicant for leave to adduce such evidence must satisfy each of the following tests:
a) The evidence could not have been obtained with reasonable diligence for use at the trial;
b) The evidence, if allowed, would probably have an important impact on the result of the case (although it need not be demonstrated that it would be decisive); and
c) That the evidence is credible though it need not be incontrovertible.[2]
[1] Sections 137 and 138 QCAT Act.
[2] Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.
An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party’s case at the initial hearing. Ray White has provided no explanation as to why this material was not available earlier. I note that Ray White did not file any material in the minor civil dispute file, even though there was a gap of at least three weeks between the first hearing and the second hearing. It cannot, now, ask for the tribunal’s assistance when it did not take appropriate action earlier. The evidence filed with the application for leave to appeal should not be admitted and determination of the application for leave to appeal must proceed on the basis of the evidence before the learned Adjudicator.
I do not understand Ray White’s request for an opportunity to be heard. As I have already stated, it had a representative present at both hearings and Ray White’s representative made submissions on both occasions. There is no substance in this ground of appeal.
Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[3]
[3]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.[4] As the High Court said in Fox v Percy:
In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.[5]
[4] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[5] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
Ray White has conceded that Mr and Mrs Walters experienced a loss of amenity because the shower was leaking[6]. At the hearing, it made no submissions about what would be reasonable compensation. The learned Adjudicator exercised his discretion and there is nothing in the transcript that persuades me he should have taken a different view, or exercised his discretion in some other way.
[6] Transcript 15 June 2011, page 6, lines 7-9.
There is no question of general importance that should be determined by the appeal tribunal; there is no reasonably arguable case that the learned Adjudicator was in error; there is no reasonable prospect of substantive relief on appeal; and there is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.
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