Tapp v Howarth-Hockey
[2013] QCATA 72
•5 March 2013
| CITATION: | Tapp v Howarth-Hockey [2013] QCATA 72 |
| PARTIES: | Aaron Tapp (Applicant/Appellant) |
| V | |
| Gemeah Howarth-Hockey (Respondent) |
| APPLICATION NUMBER: | APL416 -12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 5 March 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE - RESIDENTIAL TENANCY MATTER – where agent nominated as address for service – where agent appeared at hearing – where lessor added as a party – whether agent authorised to act for lessor – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009, s 137, s 138 Residential Tenancies and Rooming Accommodation Act 2008, s 206 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, applied |
APPEARANCES and REPRESENTATION (if any):
The Appeal Tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Ms Howarth-Hockey rented a property owned by Mr Tapp and managed by Place Real Estate. From the day Ms Howarth-Hockey moved in, the pool chlorinator did not work. Two weeks after she moved in, the downstairs area of the house flooded and there were ongoing maintenance issues. She issued a notice to remedy breach and a notice of intention to leave in May and did, in fact, leave that month. Ms Howarth-Hockey brought a claim for compensation. The Tribunal added Mr Tapp as a party and then ordered that “the respondent” pay Ms Howarth-Hockey $9,105.
Mr Tapp wants to appeal that decision. He says that he was not the original respondent to the application. He says that the claim was against Place, because of its misrepresentation. He had information that would have assisted Place in the response to the claim and he wants to put that information to the Tribunal. Mr Tapp says that he did not authorise Place to represent him at the hearing.
Because this is an appeal from a decision of the Tribunal in its Minor Civil Dispute jurisdiction, leave is necessary. 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?
The central question in this application is whether Place represented Mr Tapp at the hearing and whether it was authorised to do so.
On or before the day a tenant starts occupying a premises, the lessor or the lessor’s agent must give the tenant a written notice stating the lessor’s name and address for service or, if the agent is authorised to stand in the lessor’s place, the agent’s name and address for service.[1]
[1] Residential Tenancies and Rooming Accommodation Act 2008 s 206(1).
The tenancy agreement[2] Ms Howarth-Hockey signed shows Place as the lessor’s agent and Place’s address as the address for service. The tenancy agreement confirms[3] that Place stands in Mr Tapp’s shoes in any Tribunal application. Because Place’s name and address is the nominated address for service, proceedings can be taken against it as if it was the lessor and the Tribunal can make an order against it as if it was the lessor.[4] Mr Tapp’s assertion that he did not authorise Place to represent him in the dispute is incorrect.
[2] Exhibit 2.
[3] Residential Tenancy Agreement, clause 43(2).
[4] Residential Tenancies and Rooming Accommodation Act 2008 s206(3).
Of course, the details of the name and address for service can be changed by written notice.[5] Place’s email of 8 May 2012, recommending that Ms Howarth-Hockey re-issue the breach to the owners c/- Place[6] is not a notice of a change of details.
[5] Ibid 206(2).
[6] Attachment 50 to the application.
Mr Tapp was represented at the hearing. He was always going to be bound by the Tribunal’s decision, whether or not he was named as a party. Place was always going to be his agent at the hearing, whether or not the learned Adjudicator made an order to that effect.
Mr Tapp has filed new evidence with his application. The Appeals Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined.[7] Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Mr Tapp 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?[8]
[7] ss 137 and 138 QCAT Act
[8] Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408
Mr Tapp says that the information was available for the hearing but that Place chose not to use it. That is no reason to allow Mr Tapp to rely on the new evidence on the appeal. Mr Tapp’s fight is with his agent, rather than with the Tribunal, or Ms Howarth-Hockey.
The conversation about misrepresentations[9] does not affect the learned Adjudicator’s decision. He found, as he was entitled to do, that the house was unliveable and that this gave Ms Howarth-Hockey a right to compensation. There is nothing in the transcript that persuades me the learned Adjudicator should have taken a different view of the facts and I can find no reason to come to a different view.
[9] Transcript page 3
There is no question of general importance that should be determined by the Appeals Tribunal; there is no reasonably arguable case that the learned Adjudicator was in error; there is no reasonable prospect of substantive relief on appeal; and there is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.
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