Timmons v Kidd
[2014] QCATA 328
•26 November 2014
| CITATION: | Timmons & anor v Kidd & anor [2014] QCATA 328 |
| PARTIES: | Wayne Timmons Gina Wells (Applicants/Appellants) |
| v | |
| Iain Kidd Angelina Surace (Respondents) |
| APPLICATION NUMBER: | APL409 -14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM |
| DELIVERED ON: | 26 November 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where claim for compensation – where no conciliation attempt – where compensation ordered – where proceeding reopened and adjourned to allow conciliation – where tribunal dismissed claim - whether grounds for leave to appeal Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 416(1) Dearman v Dearman (1908) 7 CLR 549 |
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
This dispute has a long and unfortunate history. If it was before the tribunal today, as a fresh dispute, the orders of the tribunal below would have been quite different. For this reason, it is necessary to set out the history of the dispute in some detail.
Mr Timmons and Ms Wells own a rental property a Burpengary. Mr Kidd and Ms Surace were tenants from January 2011. It seems that the tenants were often behind in their rent. As the learned Adjudicator observed[1], they received a number of notices to remedy breach and notices to leave from May 2011 to June or July 2011.
[1]Transcript, page 1-23, line 46 to page 1-24, line 9.
In August 2011, the lessors filed an application for termination of the tenancy agreement for repeated breaches and compensation. They filed a non-urgent application. The claim reveals that they had not attempted conciliation of the compensation issue because they could not contact the tenants.
In September 2011, the tribunal ordered termination of the tenancy agreement. As was the tribunal’s practice of the time, it also ordered that the tenants pay compensation for damage to the property. Because there had been no conciliation, the tribunal had no power to consider the compensation claim or make orders about it[2].
[2]Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 416(1).
The tenants did not receive notice of the hearing. In June 2012, the tenants successfully applied to reopen the proceeding. In August 2012, the tribunal adjourned the hearing of the reopened proceeding until the parties had attempted conciliation. Although that is a practical order, it was an order the tribunal had no power to make because, as I have already identified, the tribunal had no power to even consider the claim unless the parties had first attempted conciliation.
Conciliation was not successful. The parties brought the matter back before the tribunal on 12 September 2014. The tribunal dismissed the lessors’ claim for compensation.
Mr Timmons and Ms Wells want to appeal that decision. They say the learned Adjudicator based his decision on ‘evidence the respondent could not produce… with regards to the actual vacate date of the tenant’. They say they had evidence to the contrary. They also say they now have evidence to the contrary; a sworn statement from the property manager at the time which is evidence of the date the tenants vacated.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[3] 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.[4]
[3]QCAT Act s 142(3)(a)(i).
[4]Pickering v McArthur [2005] QCA 294 at [3].
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 Mr Timmons and Ms Wells 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?[5]
[5]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.
Mr Timmons and Ms Wells have not filed a sworn statement. They have filed an email from the former property manager that responds to particular questions that arose from the proceeding before the learned Adjudicator.
An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party’s case at the initial hearing. Mr Timmons and Ms Wells have not explained why this material was not available earlier. Their failure to provide this information is particularly puzzling given the long delay in bringing this matter back before the tribunal. The email is not compelling. The former property manager, Ms Fuller, states what her practice is in a particular situation but she does not say that this is what occurred. She refers to a police report, but no copy is provided. The evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Adjudicator.
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.
The lessors had to prove their case before the learned Adjudicator. The date the tenants vacated was a critical issue. The learned Adjudicator heard from both sides. The lessors submitted that the tenants vacated in September. The tenants submitted they vacated in June. The learned Adjudicator accepted the tenants’ version of events because their actions, supported by the receipt for a bond clean, were consistent with them vacating the property in June[8].
[8]Transcript page 1-24, lines 11 – 29.
Mr Timmons and Ms Wells’ own material supports a view that the tenants vacated before September 2011. The property manager arranged for a carpet cleaning quote and a bond clean quote on 22 July 2011. There is a quote for replacement carpet dated 28 July 2011. There is an invoice for replacement locks dated 22 July 2011. The evidence can support the learned Adjudicator’s finding that the tenants vacated in June and I can find no compelling reason to come to a different view.
In any event, as the tribunal never had jurisdiction to entertain the claim for compensation, Mr Timmons and Ms Wells’ application should have been dismissed on other grounds.
There is no reasonably arguable case that the learned Adjudicator was in error. Leave to appeal should be refused.
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