Zhang v Eureka Group Holdings
[2014] QCATA 116
•13 May 2014.
| CITATION: | Zhang v Eureka Group Holdings [2014] QCATA 116 |
| PARTIES: | Qin Zhang (Applicant/Appellant) |
| v | |
| Eureka Group Holdings (Respondent) |
| APPLICATION NUMBER: | APL312 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 13 May 2014. |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where applicant owner and tenant in over 50s community – where applicant challenged charges – where applicant sought refund of cleaning fees – where applicant sought additional rent – where all claims dismissed - whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Eureka Group Holdings manages Parkview Gardens, an ‘over 50s’ facility at Slacks Creek. Ms Zhang was both a tenant and an owner of property at Parkview Gardens. She had three claims against Eureka. The first claim was that Eureka did not pay her all the rent due on the property she owned. Ms Zhang claimed $108.57. Ms Zhang also claimed a refund of $332 that she paid to Eureka in 2009 as a community charge. The third claim for $478.43, was a claim for the refund of rent, cleaning fees and the community charge from her tenancy in 2011. The tribunal dismissed all three claims.
Ms Zhang wants to appeal that decision. The grounds for Ms Zhang’s application are not entirely clear, except that she disagrees with the learned Adjudicator’s decision and considers that Eureka has engaged in bullying and arrogant behaviour.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as His Honour then was) in Pickering v McArthur[1]:
There are numerous authorities, in varying language but with unvarying emphasis, that leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.
[1][2005] QCA 294 at [3].
Ms Zhang has filed fresh evidence with her submissions. It is a letter from Eureka to her tenants dated 17 August 2911. She has also filed copies of emails she sent to Eureka in 2011.
The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Ms Zhang 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?[2]
[2]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.
On 18 March 2013, the tribunal ordered that Ms Zhang file and serve clear submissions to verify her claims and how the claims were derived. Ms Zhang did not comply with that direction. She does not explain why she did not comply with that direction and she does not explain why the material she now wants to rely on was not before the learned Adjudicator. The evidence should not be admitted.
The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[3] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[4]
[3]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[4]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
I have read Ms Zhang’s submissions carefully. As to the first claim, for the first time, Ms Zhang raises issues about events that occurred two years before. She refers to conversations with others, but those people have not provided statements to the tribunal. The evidence before the learned Adjudicator when he made his decision can support that decision and I can find no compelling reason to come to a different view.
As to the second claim, Ms Zhang says nothing new. She told the learned Adjudicator that the unit was not clean when she took possession and, therefore, she did not see why she should clean it when she left. The learned Adjudicator did not follow Ms Zhang’s logic[5]. She was obliged to leave the unit clean; there was a cost to that. The evidence can support the learned Adjudicator’s decision and I see no reason to come to a contrary view.
[5]Reasons for decision page 3, line 31.
As to the third claim, the learned Adjudicator relied on a signed agreement[6]. Ms Zhang says the agreement is unlawful but she provides no basis for that argument. Ms Zhang submitted that she should not have to pay a charge for services she did not use. Once the learned Adjudicator accepted that Ms Zhang agreed to pay the service charge, her use of the services was irrelevant. Ms Zhang’s submissions on the application for leave to appeal fail to demonstrate the learned Adjudicator was in error.
[6]Reasons for decision page 4, lines 39-41.
There is no reasonably arguable case that the learned Adjudicator was in error. Leave to appeal should be refused.
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