Sharma v McManus Family Trust
[2014] QCATA 77
•14 April 2014
| CITATION: | Sharma v McManus Family Trust [2014] QCATA 77 |
| PARTIES: | Nidhi Sharma (Applicant/Appellant) |
| v | |
| McManus Family Trust (Respondent) |
| APPLICATION NUMBER: | APL001 -14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 14 April 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY DISPUTE – where no exit condition report prepared – where tribunal found lessor responsible for exit condition report – whether grounds for leave to appeal PROCEDURE – COMPLIANCE WITH DIRECTIONS – where respondent filed three sets of submissions – where second and third submissions filed out of time – where respondent alleged third set of submissions filed in response to material the applicant filed but did not serve – where no application for leave to file additional submissions PROCEDURE – FRESH EVIDENCE – where fresh evidence that lessor did not spend compensation awarded on subject of award – whether grounds to allow fresh evidence on application for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 137 and 138 Pickering v McArthur [2005] QCA 294 |
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
Background
Dr Sharma rented a unit from the McManus Family Trust. The tribunal terminated the tenancy agreement because of repeated breaches. After the tenancy was terminated, McManus Consolidated Pty Ltd, trustee for the trust, filed an application for compensation.
Of a total claim of $5,383.20, the tribunal ordered compensation of $2,556.15.
Dr Sharma wants to appeal that decision. She says the learned Adjudicator erred in not taking her explanations into account. She says that Mr McManus, on behalf of the trust, presented false and misleading information about the repairs. She says that she was “not heard properly”.
Preliminary matters
The trust says that, if the appeals tribunal is going to look at each of the claims for compensation afresh, it wants to appeal those components where the learned Adjudicator did not allow the full amount of the claim. If the trust wants to appeal the learned Adjudicator’s decision, the appropriate course is to file an application for leave to appeal (paying the necessary fee) and for the tribunal to make directions allowing Dr Sharma to file submissions about the grounds for leave to appeal. As the trust has not followed this process, I do not propose to consider the submissions that urge me to make a decision more favourable than the learned Adjudicator’s original decision.
The appeals tribunal made directions on 13 January 2014 allowing the trust to file submissions within 28 days after receipt of Dr Sharma’s submissions. The tribunal received Dr Sharma’s submissions on 3 February 2014. The trust filed submissions on 3 March 2014. Obviously, those submissions complied with the tribunal’s directions. The trust also filed submissions on 10 March 2014. Those submissions are out of time.
Without explanation, the trust filed yet more submissions on 27 March 2014. It is only a matter of luck that these submissions came to my attention before I finalised my decision. The trust says these late submissions are filed because Dr Sharma didn’t send her submissions to the trust until 7 March 2014 and these are the submissions in reply.
The proper approach in that case should have been an application to the tribunal for leave to file further submissions. Because the trust did not observe the correct process, I do not have submissions from Dr Sharma about whether she failed to serve her submissions as required. The trust cannot complain of non-compliance with directions if it does not take appropriate steps to comply with tribunal procedure.
Fresh evidence
In support of her application for leave to appeal, Dr Sharma has filed fresh evidence. 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 Dr Sharma 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?[1]
[1]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.
The evidence Dr Sharma filed is an attempt to show that the trust has not spent the compensation the learned Adjudicator awarded on the repairs for which it was claimed. Although that evidence could not have been available at the time of the hearing, it will not have an important impact on the result of the case. There might be many reasons why the trust has not spent that money on fixing the particular problems. One reason might be that Dr Sharma has not yet paid the $1,164.15 she owed the trust. Another reason might be that the new tenants did not want those issues fixed. Whatever the reason, it has no impact on the fact that the damage was done in the first place. For this reason, the fresh evidence should not be accepted and the application for leave to appeal should be determined on the evidence before the learned Adjudicator.
Similarly, in its submissions of 27 March 2014, the trust sought to file fresh evidence to counter the evidence Dr Sharma filed. As I did not accept Dr Sharma’s fresh evidence, I do not need to accept the trust’s evidence in reply.
The application for leave to appeal
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as His Honour then was) in Pickering v McArthur[2]:
There are numerous authorities, in varying language but with unvarying emphasis, that 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][2005] QCA 294 at [3].
I have already dealt with Dr Sharma’s submission that the trust did not spend the compensation money on the items that it claimed in the tribunal hearing. That is not an error of the tribunal and it does not give rise to a valid ground for appeal.
Dr Sharma says that she believes Mr McManus has a system of cheating on tenants. She wants an inquiry into his practices. That is not the tribunal’s role. If Dr Sharma has evidence to support her allegations, she should present it to the Residential Tenancies Authority which is the body charged with taking enforcement action.
Dr Sharma says she did not receive a fair hearing and that the learned Adjudicator did not listen to her. The transcript shows that learned Adjudicator heard each element of the trust’s claim separately. He asked Mr McManus to outline the claim and provide his evidence in support. The learned Adjudicator then asked Dr Sharma to respond to that point.
The transcript shows that, on each occasion, the learned Adjudicator gave Dr Sharma a complete opportunity to explain her position. As Mr McManus points out in his submissions, the learned Adjudicator also allowed commentary from Dr Sharma’s support person and witness, Ms Dhillon.
As Mr McManus also points out in his submissions, the learned Adjudicator did not award compensation on all of the trust’s claims. Where the learned Adjudicator doubted Mr McManus’ evidence, he found against the trust.
The learned Adjudicator did tell Dr Sharma not to interrupt him[3] and he did, on occasion, cut Dr Sharma short. The learned Adjudicator was justified in his actions. He needed to receive a great deal of evidence in a very short time. He had to make decisions about a number of claims. He heard from both sides about each of the claims. When he did cut the parties short, the learned Adjudicator had heard the evidence and was making his decision. I am satisfied that the learned Adjudicator gave Dr Sharma a fair hearing.
[3]See, for example, transcript page 1-25.
The learned Adjudicator did make one error although it does not assist Dr Sharma. The learned Adjudicator told the parties[4] that the trust had the obligation to provide a condition report at the end of the tenancy. Section 66 of the Residential Tenancies and Rooming Accommodation Act 2008 clearly places that obligation on the tenant, Dr Sharma. The section is often honoured in the breach, so prudent lessors and their agents routinely prepare the exit condition report and forward a copy to the tenant. If the dispute does escalate to the tribunal, the lessor then has evidence of the condition of the premises when the tenancy ended. The onus then shifts to the tenant to demonstrate why the tribunal should not rely on that condition report when none has been provided by the tenant.
[4]Transcript page 1-30.
The error I have identified does not have a substantial impact on the result of the case. Leave to appeal should be refused.
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