Ray White Wynnum Manly v Garbutt
[2014] QCATA 349
•18 December 2014
| CITATION: | Ray White Wynnum Manly v Garbutt [2014] QCATA 349 |
| PARTIES: | Ray White Wynnum Manly (Applicant/Appellant) |
| v | |
| Caryn Garbutt Clinton Garbutt (Respondents) |
| APPLICATION NUMBER: | APL444 -14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Acting Deputy President Stilgoe OAM |
| DELIVERED ON: | 18 December 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where compensation for appliances not working during tenancy – where property manager could not attend hearing - whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549 |
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
Mr and Mrs Garbutt rented a house through Ray White Wynnum Manly. They were without a properly working dishwasher for three months of a six-month tenancy. The oven did not work for two months. There were problems with the garage door. At the end of the tenancy, Mr and Mrs Garbutt filed a claim for a refund of the $2,732.59 bond plus the tribunal’s filing fee.
The dispute was listed for hearing on 19 September 2014. Ray White applied to adjourn the hearing because the property manager was on leave. The tribunal refused the application for an adjournment. Two Justices of the Peace, sitting in the minor civil disputes jurisdiction of the tribunal, ordered that $1,260.08 of the bond be paid to Mr and Mrs Garbutt and $819.92 to Ray White. The Justices of the Peace further ordered that Ray White pay Mr and Mrs Garbutt $652.59 for loss of services and $105 for the filing fee.
Ray White wants to appeal the decision to order payment for loss of services. It says that the lessor acted reasonably in attending to the dishwasher issues. It says that Mr and Mrs Garbutt were partly responsible for the delay in fixing the dishwasher. It says that Mr and Mrs Garbutt always had access to a fully functioning sink. It says the garage door was in good working condition and that any defect in its operation was caused by Mr and Mrs Garbutt.
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].
Ray White has filed fresh material with the application for leave to appeal. The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Ray White have obtained the evidence with reasonable diligence 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.
The transcript shows that Ray White’s representative at the hearing, Ms Ross, was not fully familiar with the Ray White file[4]. The material submitted with the application for leave to appeal was submitted by the property manager, Ms Hutchinson, who could not attend the hearing.
[4]See, for example, transcript page 1-27, lines 36 – 45; page 1-28, lines 31 – 38; page 1-38, lines 17 – 35.
I would have accepted fresh material on the application for leave to appeal if it took the form of an affidavit from Ms Hutchinson that detailed information known only to her. I might have accepted fresh evidence if it was an affidavit from the lessors, detailing their instructions to Ray White.
The fresh material was not in affidavit form and it did no more than attach copies of emails and file notes that were available to Ms Ross at the hearing. That evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Justices.
The interesting thing about this appeal is that Ms Ross telegraphed the lessor’s intention to appeal if there was any adverse order, regardless of the learned Justices’ diligence[5]. Ms Ross showed a lack of respect for the tribunal process[6]:
So can we just adjourn…because not worth my time, I’m sorry.
[5]See for example Transcript page 1-27, lines 30 – 32; page 1-43, lines 26 – 27.
[6]Transcript page 1-42, lines 42 – 46.
A party cannot appeal just because the order is adverse. A party cannot appeal because it chooses not to engage in the hearing process. The tribunal refused the application for an adjournment on 19 September 2014. Ray White had time to appeal that decision; it did not. Ms Ross had time to familiarise herself with the file; she didn’t. The lessors had time to provide a statement as to why their approach to repairs was reasonable; they did not. Ms Ross had no alternative means of calculating compensation[7] at the hearing and the submissions to the appeal tribunal do not suggest that the calculation was in error.
[7]Transcript page 127, lines 6 – 22.
The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[8] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[9]
[8]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[9]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
I have read the transcript of the proceeding and considered the material filed. The evidence can support the learned Justices’ decision. There is nothing in the transcript to persuade me that the learned Justices should have taken a different view of the facts.
There is no reasonably arguable case that the learned Justices were in error. Leave to appeal should be refused.
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