Wells v Move Property Management
[2013] QCATA 351
•9 December 2013
| CITATION: | Wells v Move Property Management [2013] QCATA 351 |
| PARTIES: | Miss Amy Wells (Applicant/Appellant) |
| v | |
| Ms Lyndal Devrey t/as Move Property Management (Respondent) |
| APPLICATION NUMBER: | APL325 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM |
| DELIVERED ON: | 9 December 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549 Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
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
Ms Wells rented a property through Move Property Management (Move). The tenancy ended early. Move filed a claim for compensation for unpaid rent. The tribunal ordered in its favour.
Miss Wells wants to appeal that decision. She appeared by teleconference from London. She says that she was restricted in presenting her case by the time (it was 2 am in London) and her fear of public speaking. She says the amounts claimed changed unexpectedly and this confused her. She says the phone connection was a disadvantage because she was cut off at the end of the hearing, before she had a chance to respond. She is critical of the way Move fulfilled its obligation as agent.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. 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?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?[4]
[1]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2]Cachia v Grech [2009] NSWCA 232 at 2.
[3]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]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.
I listened to a recording of the hearing. Miss Wells presents as a confident, articulate speaker. There is no suggestion from the transcript that she was restricted in presenting her case or that she was uncomfortable in presenting her evidence. There is no substance in Miss Wells’ submission that the telephone connection prevented her from putting her case. In any event, as she was living in London, the tribunal had no practical alternative.
The tribunal dealt with the change in the amount of the claim. Move pointed out that the difference was the additional rent from the date of filing the claim to the date of hearing.[5] The learned Member pointed out that Move’s claim was framed to cover the extra amount.[6] Miss Wells had no reason to be surprised by the increased claim.
[5]Transcript page 1-3, lines 27 – 30.
[6]Transcript page 1-3, lines 32 – 34.
The transcript does not support Miss Wells’ submission that she was cut off at the end of the hearing. The learned Member asked Miss Wells whether she had anything else to say.[7] Miss Wells gave a lengthy reply[8]. The learned Member announced her intention to give a decision and told Miss Wells she could leave the hearing.[9] There is no suggestion that Miss Wells wanted to add anything extra at that point.
[7]Transcript page 1-11, line 27.
[8]Transcript page 1-11, line 29 to page 1-12, line 8.
[9] Transcript page 1-13, line 22.
The learned Member heard Miss Wells’ argument that she was misled about whether she could have other tenants live with her. The learned Member found, and the evidence supports, that Miss Wells was the sole tenant named on a fixed term tenancy agreement. She left the tenancy early. There are consequences to that. The evidence can support the learned Member’s findings and I can find no reason to 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 Member was in error. There is no reasonable prospect of substantive relief on appeal. 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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