Tubaro v Geale and Kenedy
[2011] QCATA 95
•8 April 2011
| CITATION: | Tubaro v Geale and Kenedy [2011] QCATA 95 |
| PARTIES: | Ms Alexandra Tubaro |
| v | |
| Mr Colin Russell Geale and Ms Summa Kenedy |
| APPLICATION NUMBER: | APL221-10 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member Peta Stilgoe, Member |
| DELIVERED ON: | 8 April 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where both parties brought urgent applications – where appellant claimed no compliance with s 416 of the Residential Tenancies and Rooming Accommodation Act 2008 because no conciliation – where tenancy terminated, bond and money in tribunal trust distributed Queensland Civil and Administrative Tribunal Act 2009, ss 47, 142(3), 216 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Senior Member Richard Oliver
In this matter the Appeal Tribunal consisted of Ms Stilgoe, QCAT Member and me. I have had the benefit of reading her reasons in draft. I agree with her reasons, and her conclusions, and the order she proposes.
Member Petra Stilgoe
Mr Geale and Ms Kenedy were tenants in a house owned by Ms Tubaro. The history of tribunal hearing between these parties is somewhat convoluted but it is necessary to record some of it here:
a)On 29 March 2010, Mr Geale and Ms Kenedy filed an urgent application requesting repairs be undertaken in the house. On 24 April 2010, the tribunal ordered that: certain repairs be undertaken by 7 May 2010; if the repairs were not completed by that time, Mr Geale and Ms Kenedy were at liberty to pay their rent into the QCAT trust account until the repairs were effected; and either party could re-list the matter on 7 days’ notice to the other party.
b)Ms Tubaro filed an application on 20 May 2010 in relation to non-payment of rent. The tribunal treated that application as an application to re-list the proceedings commenced by Mr Geale and Ms Kenedy.
c)The re-listed hearing was before the tribunal on 24 June 2010. Ms Tubaro was, again, ordered to effect certain repairs; Mr Geale and Ms Kenedy were ordered to allow entry to trades to enable the repairs to be done.
d)On 23 July 2010, Ms Tubaro filed an urgent application for termination of the tenancy agreement. Again, the tribunal treated that application as an application to re-list.
e)At a hearing on 19 August 2010, the tribunal ordered that the tenancy agreement be terminated on and from 2 September 2010. The learned Adjudicator also made orders as to the bond and the money held in the QCAT trust account.
Ms Tubaro has filed an application for leave to appeal. Because the original proceeding was in the minor civil dispute jurisdiction of the tribunal, leave is necessary: s 142(3) QCAT Act. It is apparent from her submissions that Ms Tubaro is unhappy with all of the tribunal’s decisions in this proceeding although she only seeks relief in relation to the hearing of 19 August 2010. Therefore, it is not appropriate to have regard to any of Ms Tubaro’s submissions about the adequacy or otherwise of the earlier tribunal hearings.
As to the hearing of 19 August 2010, Ms Tubaro says:
a)She was not allowed to present her case. The hearing was rushed and the learned Adjudicator told her to be quiet.
b)Mr Geale and Ms Kenedy were in breach of s 416 of the Residential Tenancies and Rooming Accommodation Act 2008.
c)The multiple hearings constitute an abuse of process by Mr Geale and Ms Kenedy.
d)Mr Geale and Ms Kenedy did not leave the house in a clean and tidy state.
e)Mr Geale and Ms Kenedy are in breach of s 216 of the QCAT Act.
f)Ms Tubaro made a claim for termination of the tenancy and payment of the bond, Mr Geale and Ms Kenedy did not, but the order was made in their favour.
g)Mr Geale and Ms Kenedy did not follow the proper process before the hearing.
Ms Tubaro’s submissions also revisit the evidence presented to the learned Adjudicator to demonstrate why his decision was wrong.
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) 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[2]. 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’.[3]
[2] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[3] Fox v Percy (supra) at 209 per Gleeson CJ, Gummow an Kirby JJ.
The learned Adjudicator’s findings are capable of being supported by the evidence and I can find no compelling reason to make an alternative finding. I understand that Ms Tubaro has a different view; that is not enough to justify granting leave to appeal.
I’ve read the transcript carefully. The minor civil disputes jurisdiction is a busy one with many matters allocated to be heard on a particular day. Within those constraints, and bearing in mind that these parties had been before the tribunal on a number of previous occasions, I am satisfied that Ms Tubaro was given a sufficient opportunity to put her case to the learned Adjudicator. In fact, the transcript shows that Ms Tubaro was given considerable leeway to produce material and make submissions. While it is true that the learned Adjudicator re-directed Ms Tubaro on a couple of occasions, there is no substance in the submission that she was not given an opportunity to put her case.
[10] Section 416(1) of the Residential Tenancies and Rooming Accommodation Act 2008 requires that a party may only apply to the tribunal if the party first made a dispute resolution request and the conciliation has ended without a conciliated result.
[11] Section 416(2) makes it clear that s 416(1) does not apply to urgent applications. Mr Geale and Ms Kenedy’s initial application was marked as urgent, as was Ms Tubaro’s application of 23 July 2010. Mr Geale and Ms Kenedy are not, therefore, in breach of s 416 of the Residential Tenancies and Rooming Accommodation Act 2008.
[12] The orders from the initial hearing on 24 April 2010 allowed either party to re-list the dispute. Both sides have taken advantage of this order. It is apparent from the later orders of the tribunal that, although the issues in dispute were similar, there were some differences and different relief resulted. The application for rent relief was simply not determined in the earlier hearings and, by the ability for either party to re-list, the tribunal must have contemplated that it was an issue that was still to be argued by the parties. The multiple hearings were not an abuse of process.[4]
[4] The relevant section is s 47, not s 43.
[13] I understand why Ms Tubaro may be confused by the tribunal process when she made an application for certain relief and that relief was, apparently, granted to Mr Geale and Ms Kenedy. Ms Tubaro applied for, and was granted, a termination order. A consequence of that order was that the learned Adjudicator was able to make orders about the rental bond and the funds held in trust.
[14] As I have already observed, the evidence produced in this proceeding is capable of supporting the learned Adjudicator’s findings about the allocation of the money. The learned Adjudicator found that Ms Tubaro did not provide an adequate oven for a period of 23 weeks. He ordered a reduction in rent to reflect that loss of amenity. The learned Adjudicator also found that the house was not Waterwise as required by the regulations. Therefore, he found that Ms Tubaro could not require that Mr Geale and Ms Kenedy pay the water bill. Ms Tubaro’s submissions give me no reason to make any different findings.
[15] It is a very serious allegation to suggest that a party breached s 216 of the QCAT Act by giving false information to the tribunal. Ms Tubaro says that Mr Geale and Ms Kenedy lied about the condition of the oven. Simply stating that to be the case is not sufficient evidence to establish a breach of s 216.
[16] Ms Tubaro now complains that Mr Geale and Ms Kenedy left the house in an unclean state. That was not a matter raised in the hearing before the learned Adjudicator. Ms Tubaro has rights in relation to the cost of cleaning the house but those rights cannot be exercised through an application for leave to appeal.
[17] 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?[5] Is there a reasonable prospect that the applicant will obtain substantive relief?[6] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[7] 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?[8]
[5] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[6] Cachia v Grech [2009] NSWCA 232 at [13].
[7] QUYD Pty Ltd v Marvass Pty Ltd (supra).
[8]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.
[18] Ms Tubaro has not pointed to any arguable case of error on the part of the learned Adjudicator. There is no reasonable prospect that Ms Tubaro will obtain substantive relief if leave to appeal is granted; and there is no question of general importance on which a decision of the Appeal Tribunal is necessary.
[19] I acknowledge that Ms Tubaro alleges that she has suffered a substantial injustice because she has been denied access to the rent that, otherwise, would have been payable. She has not provided any documentary evidence to the tribunal to show financial hardship and, by failing to repair the defects in the home by 7 May 2010, Ms Tubaro has been the author of her own loss. Leave to appeal should be refused.
0
2
0