Woodhead v K F Gold Coast Pty Ltd
[2011] QCATA 35
•24 February 2011
| CITATION: | Woodhead v K F Gold Coast Pty Ltd [2011] QCATA 35 |
| PARTIES: | Ms Kristy Anne Woodhead (Applicant/Appellant) |
| v | |
| K F Gold Coast Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL320-10 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 24 February 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal is refused. |
| CATCHWORDS : | Minor Civil Dispute – fresh evidence – where evidence would have reasonably been available for the hearing at first instance – no error identified Queensland Civil and Administrative Tribunal Act 2009 section 142(3) Fox v Percy (2003) OCA22 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 |
APPEARANCES and REPRESENTATION:
This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
On 3 November 2010 the Tribunal made orders that the Residential Tenancies Authority pay the bond money held by it to the applicant and the respondent as follows: to the lessor, $321 and to the tenant, $579.
The bond was divided to compensate the lessor for the cost of replacing a carpet in the premises rented by the applicant at 8A Milton Avenue, Southport.
Ms Woodhead’s tenancy of the premises commenced on 14 March 2009 and she remained in occupation of the property for 17 months. When she vacated the property, the lessor’s agent noticed that the carpet had been damaged as a result of Ms Woodhead’s pet cat clawing at the carpet. The cost to replace the carpet was $770 and that, plus the application fee resulted in the payment, from the bond, to the lessor’s agent of $821.
The application came on before a Tribunal member on 3 November 2010 at the Southport Court where evidence was given by both Ms Woodhead and the lessor’s agent, Ms Campbell.
Ms Woodhead, the transcript reveals, conceded that the carpet was new when she took up occupation of the premises, and that her cat had caused the damage resulting in small holes in the carpet. The evidence before the learned Member was that the carpet had to be replaced and the reasonable cost of that was $770. Ms Woodhead contended that the carpet did not need to be replaced but could be repaired as a much lower cost.
However, having heard the evidence of both parties, and considering the quote handed to the Member that the carpet was not able to be fixed, she made the Order. The quote from World Carpets Pty Ltd states:
“It is my professional opinion that the carpet in the abovementioned unit has been damaged by cat’s claws. The carpet is not able to be fixed and will have to be replaced.”
That was the only evidence before the learned Member and given the concessions made by Ms Woodhead at that time, the outcome was clearly open on the evidence.
On filing her application for leave to appeal and appeal[1] Ms Woodhead has gone to the trouble of obtaining further evidence which suggests that the carpet can be repaired for a much lesser sum.
[1] Leave is necessary: QCAT Act section 142(3).
The difficulty Ms Woodhead faces is that this is an appeal and as such, she must satisfy this Appeal Tribunal that the learned Member made an error in her determination of the facts or the law. My duty is to determine whether there is an error in the primary decision. It is not my task to consider where the truth lay as between the competing versions given by the parties in the minor civil dispute hearing[2]. It is not the function of the Appeal Tribunal to re hear the case afresh and admit new evidence when that evidence would have been reasonably available to the parties at the time of the original hearing. What Ms Woodhead is asking, is that this Tribunal now re hear the matter afresh without identifying any error on the part of the learned Tribunal Member.
[2] Fox v Percy (2003) OCA22 at (32).
As I have indicated, 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?[3] Is there a reasonable prospect that the applicant will obtain substantive relief?[4] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[5] 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?[6]
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4] Cachia v Grech [2009] NSWCA 232 at [13].
[5] QUYD Pty Ltd v Marvass Pty Ltd (supra).
[6]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.
Considering how the hearing was conducted and the evidence offered by both parties, it seems to me not only was the conclusion reached open on the evidence, it was the only reasonable outcome. Had the new evidence then available been before the Tribunal at first instance there may have been a different outcome but unfortunately, this does not assist Ms Woodhead in this appeal. Here there is no arguable case of error, nor any substantial injustice, having regard to the evidence in the original hearing.
As Ms Woodhead has been unable to identify any error on the part of the learned Member, and I might say, none is apparent from reading the transcript of the hearing and the reasons, leave to appeal must be refused.
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