Wong v Sokolowsky
[2013] QCATA 349
•2 December 2013
| CITATION: | Wong v Sokolowsky [2013] QCATA 349 |
| PARTIES: | Paul Wong (Applicant/Appellant) |
| v | |
| Alexander Sokolowsky (Respondent) |
| APPLICATION NUMBER: | APL380 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM |
| DELIVERED ON: | 2 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 (QCAT Act).
REASONS FOR DECISION
Mr Wong and Mr Sokolowsky shared a flat on and off over a short period. Mr Wong paid the rent. He wanted Mr Sokolowsky to pay half. He filed a claim to recover $2,198 from Mr Sokolowsky. An Adjudicator ordered Mr Sokolowsky pay half the rent for the time he lived in the flat, an amount of $848.
Mr Wong wants to appeal that decision. He says that the learned Adjudicator was wrong to believe Mr Sokolowsky’s version of events.
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.
To show that the learned Adjudicator was in error, Mr Wong filed an affidavit from Ms Ignativ exhibiting a tenancy agreement. The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined[5]. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Mr Wong have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?[6]
[5]QCAT Act ss 137 and 138.
[6]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.
An application for leave to appeal is not, and should not be, an attempt to shore up the weaknesses of a party’s case at the initial hearing. Mr Wong has not explained why this material was not available earlier. Mr Sokolowsky submits that the evidence is not credible, because Ms Ignativ is an elderly lady who may be easily influenced. Her evidence should be tested by cross-examination. The fresh material should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned the learned Adjudicator.
The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[7] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[8]
[7]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[8] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
This dispute is simply a question of whose version of events was more likely to be true. The learned Adjudicator explained why he preferred Mr Sokolowsky’s version of events. He ordered Mr Sokolowsky to pay rent for the days that he lived in the flat. That is a significant concession where the parties were friends and the arrangement was informal.
I have read the transcript carefully and considered the material before the learned Adjudicator. The evidence supports the learned Adjudicator’s conclusion and there is nothing in the transcript to persuade me he should have taken 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 Adjudicator 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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