Royer v Toogoom Beach Realty
[2014] QCATA 199
•25 July 2014
| CITATION: | Royer v Toogoom Beach Realty [2014] QCATA 199 |
| PARTIES: | Amanda Jane Royer (Applicant/Appellant) |
| v | |
| Toogoom Beach Realty (Respondent) |
| APPLICATION NUMBER: | APL514-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Thomas, President |
| DELIVERED ON: | 25 July 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 applicant vacated tenancy early – where respondent claimed for rent until new tenant found – where applicant claimed premises unfit – where counterclaim for tenants’ expenses – whether tribunal considered counterclaim – 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
Ms Royer rented a property through Toogoom Beach Realty. She signed a tenancy agreement for the period 18 August 2012 to 18 August 2013. On 15 May 2013, she gave a notice to leave and she left on 18 May 2013. Toogoom filed an application for compensation, including unpaid rent. Ms Royer filed a counter application for compensation. A Magistrate, sitting as a member of the tribunal allowed some of Toogoom’s claim and some of Ms Royer’s claim. He ordered Ms Royer pay Toogoom $4,363.15.
Ms Royer has filed an application for leave to appeal, indicating that she will present her complete case regarding a break lease on a rehearing. She says the property was not fit for her to live in.
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].
Ms Royer filed evidence with her application for leave to appeal: three affidavits, a bundle of email correspondence, a packet of photos, and a CD.
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?[3]
[3]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 correct any deficiencies associated with a party’s case at the initial hearing. In a letter to the tribunal dated 22 August 2013, Ms Royer stated that her witnesses would not be available until 24 September. She filed her counter application on 27 September. The hearing was held on 15 November 2013, yet Ms Royer did not submit any witness statements. She has not explained why the affidavits were not available at the hearing before the learned Magistrate. They should not be admitted on appeal.
In regard to the photographs, Mr Royer, Ms Royer’s husband, invited the learned Magistrate to look at them during the hearing. The learned Magistrate declined the invitation twice – he did not look at the photos – while they might have been relevant to an application for abatement of rent, they were not relevant to the application before him.[4] The learned Magistrate also declined to look at photos because, he said, there was no issue about the condition of the premises when Ms Royer left.[5] I accept the learned Magistrate’s view that the photos were not relevant. They should not be admitted in this application for leave to appeal.
[4]Transcript page 1-13, lines 4 – 6.
[5]Transcript page 1-18, lines 26 – 28.
Mr Royer offered the learned Magistrate footage of a conversation between a Mr Maher and a Toogoom employee. He also offered the learned Magistrate copies of documents showing that the property was not listed on the internet at a particular date. The relevant date appears to be 12 May 2013, before Ms Royer left the premises. There was no suggestion before the learned Magistrate that Toogoom had failed to mitigate the loss of rent. In the absence of a submission to that effect, the documents do not have an important impact on the result of the case and should not be admitted.
The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[6] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[7]
[6]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125 – 126.
[7]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
Ms Royer had ample opportunity to put her case before the learned Magistrate. On 22 August 2013, she advised the tribunal that she was going to lodge a counterclaim and she had an appointment with the Tenants’ Union on 29 August 2013. Ms Royer claimed three amounts in her counter application and the learned Magistrate dealt with each of those matters. Ms Royer also referred to “lease break”, the condition of the road and the failure to fix the dishwasher. Those matters were dealt with.
The learned Magistrate’s findings were open on the evidence, and there is nothing in the transcript to persuade me that he should have taken a different view of the facts.
There being no reasonably arguable case that the learned Magistrate was in error, leave to appeal is refused.
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