Valmist Pty Ltd v Ybanez
[2011] QCATA 167
•13 July 2011
| CITATION: | Valmist Pty Ltd v Ybanez [2011] QCATA 167 |
| PARTIES: | Valmist Pty Ltd |
| v | |
| Teresita Ybanez |
APPLICATION NUMBER: APL035-11
| MATTER TYPE: | Appeals |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Richard Oliver, Senior Member Peta Stilgoe, Member |
DELIVERED ON: 13 July 2011
DELIVERED AT: Brisbane
ORDERS MADE: Leave to appeal refused
| CATCHWORDS: | MINOR CIVIL DISPUTE – where tenant sought refund of bond paid to landlord – whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR Fox v Percy (2003) 214 CLR 118 Chambers v Jobling (1986) 7 NSWLR 1 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Mr 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.
Ms Stilgoe
Ms Ybanez was a tenant in a property managed by Valmist Pty Ltd. On the termination of the tenancy, the bond was paid to Valmist on account of unpaid rent, cleaning and gardening costs. Ms Ybanez applied to the tribunal for a refund of the bond. The learned Member ordered that $578.57 be paid to Ms Ybanez
Valmist has appealed the learned Member’s decision on these grounds:
a) There was no basis for Ms Ybanez’s claim as the time for disputing payment of the bond had passed.
b) The learned Member declined to accept sworn evidence from Valmist but accepted unsworn evidence from Ms Ybanez.
c) The learned Member erred in not having reference to Ms Ybanez’s breach in failing to supply an exit condition report.
d) The learned Member erred in not allowing an adjournment so that Valmist could produce a copy of the entry condition report.
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 time for disputing the payment of the bond contained in the Residential Tenancies and Rooming Accommodation Act 2008 relates to the obligations of the Residential Tenancies Authority. It does not regulate proceedings about the bond as between landlord and tenant.
The learned Member did not in fact accept Ms Ybanez’s unsworn evidence over Valmist’s sworn evidence. As the transcript shows, the learned Member had two differing stories, to which both parties had sworn.[1] The learned Member was required to consider which version of events she preferred. It is clear from the transcript that the learned Member preferred the evidence of Ms Ybanez because: Valmist did not provide a copy of the entry report; it did not have contemporaneous records of the condition of the premises when Ms Ybanez vacated by way of either photos or an exit report; the landlord issued an invoice for $400 for his own time in mowing the yard[2]; and the photos produced to the tribunal were photos taken some time prior to Ms Ybanez vacating the property.
[1] Transcript page 5, lines 30-31; page 6, lines 4-8
[2] Transcript page 3, lines 32-36
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.[3]
[3]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.[4] 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.[5]
[4] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[5] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
I can see no compelling reason to overturn the learned Member’s findings as I find that her conclusions are capable of being supported by the evidence before her at the hearing. My view in this regard is not altered by the submission from Valmist that it was Ms Ybanez’s obligation to provide the exit report. As Valmist’s representative Mr Morrison told the learned Member, he had over 20 years experience appearing before Courts and tribunals[6]; one would have thought that this experience would have taught Mr Morrison to come properly prepared, including some form of exit analysis by the landlord.
[6] Transcript page 5, lines 44-45
There is no evidence that the learned Member declined to grant an adjournment to allow Valmist to produce the entry report. At its highest, Mr Morrison said[7]:
“And if the original condition report is required, I can get it but, at the end of the day, I am under oath and I am providing evidence that clearly states that the work needed to be done.”
[7] Transcript page 6, lines 3-4
That language does not constitute a request for adjournment.
In its submissions for leave to appeal, Valmist has included a copy of the entry report and a statutory declaration from Sue Roza. New evidence will ordinarily only be allowed at an appeal when it could not, by reasonable diligence, have been obtained for the original hearing, is credible, and might have produced an opposite result[8].
[8] Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435
Valmist has not explained why this evidence was not available at the hearing in circumstances where it is reasonably apparent that, with even a little diligence, this material could have been placed before the learned Member.
There is no question of general importance that should be determined by the appeals tribunal; there is no reasonably arguable case that the learned Member 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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