Willmore v Multi Stock Pty Ltd
[2012] QCATA 228
•13 November 2012
| CITATION: | Willmore v Multi Stock Pty Ltd and Anor [2012] QCATA 228 |
| PARTIES: | Mathew Willmore |
| v | |
| Multi Stock Pty Ltd trading as JLP Real Estate Laurel Coleman |
| APPLICATION NUMBER: | APL165-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member Susan Gardiner, Member |
| DELIVERED ON: | 13 November 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The application for leave to appeal is refused. |
| CATCHWORDS : | Minor Civil Dispute – tenancy dispute – where claims fail on the evidence presented – where no grounds disclosed in reasons Queensland Civil and Administrative Tribunal Act2009, ss 142(3), 146 Pavey & Matthews v Paul (1987) 162 CLR 221 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
Senior Member Richard Oliver
I have had the benefit of reading the reasons of Ms Gardiner in draft. I agree with her reasons and her conclusions, and the order she proposes.
Member Susan Gardiner
This application concerned a tenancy which saw Mr Willmore and his partner vacate premises in September 2011 after this Tribunal issued a warrant for possession to the owner. Rent was owed at that time.
The owner made a number of claims arising from the tenancy concerning rent due, cleaning repairs and renovations after the tenancy. Mr Willmore and his partner made a number of counter claims alleging rent reduction for various reasons, bond release, reimbursement for monies expended by them during the tenancy and recompense loss and damage occasioned by water and mould.
The matter was heard on 22 December 2011 for nearly three hours and the decision reserved. Many volumes of material were provided to the learned adjudicator by both parties. A detailed decision was handed down by the learned adjudicator on 31 March 2012. Mr Willmore and his partner were ordered to pay $5,650 to the applicants and in part satisfaction, the bond was returned to the lessor.
Under the QCAT Act, an appeal in the minor civil dispute jurisdiction can only be brought with the Tribunal’s leave or permission.[1] The question whether or not leave should be granted is usually addressed according to established principles: is there a reasonably arguable case of error in the primary decision?[2] Is there a reasonable prospect that the applicant will obtain substantive relief?[3] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[4] 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?[5]
[1] Section 142 Queensland Civil and Administrative Tribunal Act2009.
[2] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[3] Cachia v Grech [2009] NSWCA 232 at [13].
[4] QUYD Pty Ltd v Marvass Pty Ltd (supra).
[5]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.
In summary Mr Willmore’s appeal specifies the following grounds for his application:
i) That the learned adjudicator did not consider all matters of fact and law and in particular the finding that Mr Willmore and his partner did not mitigate their loss by leaving the premises;
ii) That the owner had not maintained the premises as required under the Residential Tenancies and Rooming Accommodation Act 2008 in regard to the condition of the premises and emergency repairs;
iii) That a substantial injustice has occurred because of this; and
iv) That it is of public advantage the have these matters considered with respect to a tenant's right to well maintained premises and right to compensation in circumstances where there is no breach by the tenant.
A reading of the transcript reveals while the hearing was lengthy with extra documentation produced at that time, this was a matter that was based on findings of facts.
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.[6]
[6]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
Numerous assertions were made by Mr Willmore but he and his partner were short on many occasions on evidence to support the assertions or, the evidence that was supplied was not accepted by the learned adjudicator as probative of the assertion made (for example, reports were commissioned months after the end of the tenancy).
[10] In filing this appeal the overwhelming impression of Mr Willmore is that he simply wants to re-litigate the application because the decision went against him on its facts at the first hearing. This is not the basis for the granting of leave to appeal. Mr Willmore was afforded procedural fairness – he had ample time to prepare his case and to present it at the hearing.
[11] The sad truth for Mr Willmore is that the learned adjudicator either did not believe the claims he and his partner made – describing them as “contrived afterthoughts”, “nonsensical”, “fanciful” and “plucked out of the air”, did not find sufficient evidence to support their claims or found the claims based on reports some seven months after the event.
[12] There is no demonstrated or discernable error in the learned Member’s decision, particularly in relation to the findings of fact. There is no question of importance about which a further argument and a decision of the Appeal Tribunal would be of public advantage. Leave to appeal should be refused.
0
4
0