Schultz v Elders Real Estate Redcliffe

[2011] QCATA 331

CITATION: Schultz v Elders Real Estate Redcliffe and Anor [2011] QCATA 331

PARTIES:	Serena Schultz (Applicant/Appellant)
v
Elders Real Estate Redcliffe (First Respondent) Miriam Misiuna (Second Respondent)

APPLICATION NUMBER: APL366-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Richard Oliver, Senior Member

DELIVERED ON: 8 December 2011

DELIVERED AT: Brisbane

ORDERS MADE: Leave to appeal is refused.

CATCHWORDS:

Minor Civil Dispute – where credit findings – were no error identified

Queensland Civil and Administrative Tribunal Act2009, s 142(3)

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. Ms Schultz and Ms Misiuna were co tenants in a rented premises at Redcliffe.  They fell in dispute and the tenancy was terminated.  At the time the tenancy was terminated, rent monies were owed to the lessor however, Ms Misiuna continued to pay her share of the rent.

1. To recover the rent owed by both tenants, and in particular Ms Schultz, Elders Real Estate filed an application in the minor civil disputes jurisdiction to recover the outstanding rent of $2,978.57.  They have also claimed $66.00 for pest control, $78.00 for carpet cleaning and bond clean of $350.00.

1. The matter came on for hearing before a Tribunal Member on 19 September 2011.  At the conclusion of the hearing the learned Member was satisfied that Ms Schultz should pay $1,629.00 to Elders Real Estate and the bond held by the Residential Tenancy Authority of $1,160.00 be paid out to Elders Real Estate.

1. From that decision Ms Schultz has filed an application for leave to appeal or appeal.  Leave to appeal is necessary as this is an appeal from a decision in the minor civil disputes jurisdiction.[1]  The grounds of appeal contend that Ms Schultz did not get a fair hearing, the learned Member made an error in law in deciding that the co tenant was not responsible to pay the amount ordered and also challenged the calculations of the learned Member.

[1] QCAT Act, s 142(3).

1. 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?

1. Ms Schultz’s submissions in support of the application do nothing more than rely on evidence which, presumably, was relevant to matters before the learned Member.  There are a series of letters to the Tribunal which, I presume, are in the nature of submissions which deal with the history of her relationship with Ms Misiuna in the rented property.  She also seeks to lead some further evidence as to what she has been told by third parties about comments made by Ms Misiuna about the conduct of the hearing.  This is obviously irrelevant to this application.

1. The material that Ms Schultz has filed does not go to identifying any error on the part of the learned Adjudicator in coming to the decision that he did about the payment of outstanding rent.  For leave to appeal to be granted Ms Shultz must identify some error of law or some finding of fact that was not open to the learned Member on the evidence. 

1. I have carefully read the transcript and it appears to me that the learned Member gave Ms Schultz every opportunity to put forward her case and at the conclusion, gave cogent reasons as to why he preferred the evidence of Ms Misiuna.  He set out the basis for preferring her evidence to that of Ms Schultz.  The credibility finding made by him was clearly open on the evidence and nothing in the material put before the Appeal Tribunal, or in the transcript demonstrates any basis as to why that credibility finding should be set aside.

1. Ms Schultz has failed to meet the test for leave to appeal and therefore the application for leave must be refused.