Semi Kuboutawa Meo v Prakash
[2011] QCATA 5
•24 January 2011
| CITATION: | Semi Kuboutawa Meo v Prakash [2011] QCATA 5 |
| PARTIES: | Mr Semi Kuboutawa Meo (Applicant/Appellant) |
| v | |
| Mr Jagdish Prakash, Mrs Sheela Prakash (Respondent) |
APPLICATION NUMBER: APL298-10
| MATTER TYPE: |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Richard Oliver, Senior Member |
DELIVERED ON: 24 January 2011
DELIVERED AT: Brisbane
ORDERS MADE: Leave to appeal is refused
| CATCHWORDS : | Residential Tenancy; whether a residential tenancy agreement was entered into by the parties; whether findings of the Tribunal open on the evidence. Queensland Civil and Administrative Tribunal Act 2009 section 142(3) |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
On 27 October 2010 a Tribunal member made an order terminating a tenancy agreement between the applicant and the respondent in respect of premises at 7 Liatoki Place, Mansfield and that a warrant for possession be issued. It was also ordered that the respondent pay to the applicant the sum of $16,535.71 being arrears of rent plus a filing fee of $250.00.
On 8 November 2010 Mr Meo filed an application for leave to appeal and appeal the decision of the Tribunal member. Leave is necessary.[1]The grounds of appeal challenge the findings made by the Tribunal member as to the existence of a residential tenancy agreement, as defined in the Residential Tenancy Rooming Accommodation Act 2008 (“the Act”), between the parities.
[1] QCAT Act section 142(3)
A conclusion was drawn, from the evidence filed in the Tribunal by Mr Prakash in which he sets out that the arrangements that were put in place with Mr Meo in November 2009, that although there was no formal written residential tenancy agreement prepared or signed by the parities, the emails passing between were sufficient to establish such an agreement. The emails confirmed the arrangements for Mr Meo to reside in the premises and pay rent of $600 per week. Subsequently, the rent was reduced to $400 per week with no bond payment. The learned member made specific findings of fact with respect to that agreement after hearing the parties and found that the arrangement “did constitute an agreement to pay rent at the rate of $400 per week commencing on 18 December”. These findings were clearly open on the evidence.
The definition of residential tenancy in the Act is as follows:-
“11. Residential Tenancy
A residential tenancy is the right to occupy residential premises under a residential tenancy agreement.
12. Residential Tenancy Agreement
(1) A residential tenancy agreement is an agreement under which a person gives to someone else a right to occupy residential premises as a residence.”
Here, Mr Meo had a right to occupy the premises at 17 Liatoki Street and exercised that right until the day of the termination order. Mr Meo contends that there was no agreement to pay rent but his right to occupy was part of a business arrangement. The learned member dealt with this and said:-
“While I accept that some of this relationship is documented in that there are business cards and there are some evidence that Mr Meo has been receiving mail, I have no evidence of the nature of the business relationship between the parties. Certainly there is no evidence to contradict the agreement of 9 December 2009 that there be some rebate for rent against business income.”
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[2].
[2]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 197 ALR 201 at
207, 208
An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case[3]. 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.[4]
[3] Chambers v Jobling (1986) 7 NSWLR 1 at 10
[4] Fox v Percy (supra) at 209 per Gleeson CJ, Gummow an Kirby JJ
In this case there is no compelling evidence to contradict the findings of fact made by the learned member. In fact, the findings as to the existence of a residential tenancy agreement are entirely consistent with the evidence put before the Tribunal.
My sole duty is to determine whether there is an error in the primary decision. It is not my task to decide where the truth lay as between the competing versions given by the parties.[5]
[5] Fox v Percy [2003] HCA 22 at [32] per Gleeson CJ, Gummow and Kirby JJ.
The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?[6] Is there a reasonable prospect that the applicant will obtain substantive relief?[7] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[8] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[9]
[6] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[7] Cachia v Grech [2009] NSWCA 232 at [13].
[8] QUYD Pty Ltd v Marvass Pty Ltd (supra).
[9] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
There is no demonstrated or discernable error in the learned member’s decision and therefore leave to appeal must be refused.
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