Trimble v Riksen
[2013] QCATA 77
•11 March 2013
| CITATION: | Trimble v Riksen [2013] QCATA 77 |
| PARTIES: | Vic Trimble (Applicant/Appellant) |
| V | |
| Mark Riksen (Respondent) |
| APPLICATION NUMBER: | APL253 -12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 11 March 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where marina berth washed away in 2011 floods - whether tenancy agreement included marina berth - where some compensation by lessor – whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549, cited Chambers v Jobling (1986) 7 NSWLR 1, cited |
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
In October 2010, Mr Riksen rented a unit on the river at Norman Park from Mr Trimble. The unit complex included a marina and jetty. In December 2010, Mr Riksen was negotiating to buy a boat which he intended to moor at the marina.
The jetty and marina washed away in the January 2011 floods and they were not restored for at least 10 months. Mr Trimble offered some reduction in rent but Mr Riksen was not satisfied with the offer. He filed an application for reduction in rent. The Tribunal ordered Mr Trimble pay Mr Riksen $5,200 compensation.
Mr Trimble wants to appeal that decision. He says that the learned Adjudicator erred in finding that the marina berth was part of the rental agreement. He says that he had already compensated Mr Riksen for the loss of the facility. He says that, because Mr Riksen did not have a boat, he had no loss.
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?
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.[1]
[1]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.[2] As the High Court said in Fox v Percy[3]:
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]
[2] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[3] (2003) 214 CLR 118.
[4] Ibid 128 per Gleeson CJ, Gummow and Kirby JJ.
The tenancy agreement states that [Mr Riksen] “will be entitled to use…marine jetty facilities as part of the lease agreement.” Mr Trimble told the learned Adjudicator, and continues to argue, that this is a reference to the common property jetty facilities, not the marina berth. The learned Adjudicator considered the terms of the tenancy agreement and the email traffic between Mr Riksen and Mr Trimble’s agent. He found[5] that the marina berth was part of the tenancy agreement. There is nothing in the transcript that persuades me the learned Adjudicator should have taken a different view.
[5] Riksen v Trimble and Anor [2012] QCAT 282 at [11] - [12]
Mr Trimble told the learned Adjudicator[6] that he reduced Mr Riksen’s rent by not charging the full rent increase at the end of the first year. The rent reduction was 0.6%, or $650, across the full year. Mr Trimble also told the learned Adjudicator that the monthly rental for the marina berth would be about $400 to $500 per month.[7] The learned Adjudicator found that Mr Riksen had lost use of the berth. He valued the loss of that opportunity at $400 per month.[8] The learned Adjudicator’s finding is open on the evidence. Although reasonable minds may differ about the learned Adjudicator’s calculation, I can find no compelling reason to come to a different view.
[6] Transcript, page 12.
[7] Ibid 26-27.
[8] Riksen v Trimble and Anor supra at [14].
The learned Adjudicator’s decision should not be overturned because Mr Riksen did not have a boat. The learned Adjudicator was aware of this fact when he made his decision. Mr Riksen provided evidence that he was negotiating the purchase of a boat in December 2010. He put those negotiations on hold when the berth was washed away. On any view, Mr Riksen suffered a loss of amenity through the loss of the berth. The learned Adjudicator compensated him for that loss and the evidence supports the learned Adjudicator’s calculations. There is no reason why I should come to a different view.
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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