Turner v Elders Real Estate Chinchilla
[2014] QCATA 147
•23 June 2014
| CITATION: | Turner v Elders Real Estate Chinchilla [2014] QCATA 147 |
| PARTIES: | Thomas Turner (Applicant/Appellant) |
| v | |
| Elders Real Estate Chinchilla (Respondent) |
| APPLICATION NUMBER: | APL495-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Thomas, President |
| DELIVERED ON: | 23 June 2014 |
| DELIVERED AT: | Brisbane |
| ORDER MADE: | The application for leave to appeal is refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY DISPUTE – where signed tenancy agreement – where tenant argued different terms agreed orally – where tribunal found terms of the agreement were as per the tenancy agreement – whether Magistrate erred in findings of fact – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 142(3)(a)(i) Chambers v Jobling (1986) 7 NSWLR 1, cited |
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
Mr Turner was one of three people who signed a tenancy agreement through Elders Real Estate Chinchilla. At the end of the tenancy, Elders filed a claim for compensation, including unpaid rent. A Magistrate, sitting as a member of the tribunal, ordered Mr Turner pay Elders $10,578.53, including $5,555.07 rent arrears.
Mr Turner wants to appeal that decision. He says the learned Magistrate erred in fact and law in finding that he was a party to the tenancy agreement. He says the learned Magistrate erred in fact and law in failing to find the rent payable under the tenancy agreement was $250 per week, not $330. He says the learned Magistrate erred in not rectifying the tenancy agreement to record the actual agreement entered into by the parties. He says the learned Magistrate failed to give enough weight to his sworn affidavit. He says that the learned Magistrate erred in failing to find that he was not bound by the tenancy agreement because there was a total failure of consideration.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] The principles the appeal 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:
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]
[1]QCAT Act s 142(3)(a)(i).
[2][2005] QCA 294 at [3].
The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[3] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[4]
[3]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[4]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
Mr Turner sets out the facts on which, he says, the learned Magistrate erred. All of these matters were ventilated at the hearing. Essentially, Mr Turner argued that there was an oral agreement by which he rented only the shed and he never agreed to rent the house.
The learned Magistrate noted that Mr Turner signed the tenancy agreement. The learned Magistrate noted that the terms of the tenancy agreement largely mirrored the contents of an email between Mr Turner and the lessor that preceded the tenancy agreement. The learned Magistrate further noted that none of the contemporaneous documents included the specific terms alleged by Mr Turner.
The learned Magistrate found that Mr Turner was bound by the tenancy agreement. The evidence can support that view and there is nothing in the transcript to persuade me that the learned Magistrate should have taken a different view of the facts.
The learned Magistrate noted that the tenancy agreement provided for a reduction in rent for a period of 38 weeks. Because the she did not accept Mr Turner’s version of the tenancy agreement, the fact that she did not find that the rent for the whole of the term was only $250 per week was not an error. It follows, therefore, that the Magistrate’s refusal to rectify the tenancy agreement to show a weekly rental of $250 per week was not an error.
Mr Turner’s sworn affidavit was only one piece of evidence that the learned Magistrate could consider. She acknowledged receipt of the affidavit. She also acknowledged that Mr Turner gave similar evidence over the telephone. The Magistrate preferred the evidence contained in documents created at, or prior to, the execution of the tenancy agreement. As I have already observed, the evidence can support the learned Magistrate’s findings and I can find no reason to come to a different view.
As to the alleged total failure of consideration, the Magistrate found that Mr Turner signed the tenancy agreement, and a house was provided. Pursuant to that agreement, the shed was available, albeit not for residential purposes. The learned Magistrate was not in error.
There is no reasonably arguable case that the learned Magistrate was in error. Leave to appeal should be refused.
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