O'Rourke v Maxwell

[2014] QCATA 236

CITATION: O’Rourke & Anor v Maxwell & Anor [2014] QCATA 236

PARTIES:	Carol O’Rourke Brendon Jones (Applicants/Appellants)
v
Paul Maxwell Nerida Roche (Respondents)

APPLICATION NUMBER: APL074 -14

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Thomas, President

DELIVERED ON: 26 August 2014

DELIVERED AT: Brisbane

ORDER MADE: The application for leave to appeal is refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where applicants appeared at hearing unprepared – where respondents alleged a contra deal – where applicants had no knowledge of contra deal – where tribunal expressed concern about sufficiency of rental ledger – where claim couldn’t be proven and was dismissed – where applicants filed additional evidence on appeal – whether appeal tribunal should accept additional evidence – whether  grounds for leave to appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 142(3)(a)(i)
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 88(8)

Pickering v McArthur [2005] QCA 294, applied
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, applied

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

1. Ms O’Rourke and Mr Jones manage the Kuranda Rainforest Accommodation Park. Mr Maxwell and Ms Roche are tenants.                 Ms O’Rourke and Mr Jones filed an application for rent arrears of four weeks. A Magistrate, sitting as a member of the tribunal, dismissed their claim.

2. Ms O’Rourke and Mr Jones seek to appeal that decision on the bases that the learned Magistrate asked for detailed information that they were unable to provide, and, that Mr Maxwell and Ms Roche claimed there was a contra agreement of which they were not aware. They say they now have evidence that confirms their claim for rent arrears.

3. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] 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.[2]

   [1]QCAT Act s 142(3)(a)(i).

   [2][2005] QCA 294 at [3].

4. Ms O’Rourke and Mr Jones have filed additional evidence with their application for leave to appeal. The appeals tribunal will only accept additional evidence if it was not reasonably available at the time the proceeding was heard and determined. Where a party seeks to rely on such evidence, the party must satisfy three tests: with reasonable diligence, could the evidence have been obtained 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?[3]

   [3]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.

1. An application for leave to appeal is not, and should not be, an attempt to correct deficiencies of a party’s case at the initial hearing. Ms O’Rourke told the learned Magistrate that she was not aware of any arrangement prior to her appointment in August 2013.[4] However, the evidence filed on appeal includes invoices from Ms Roche from both before and after August 2013. If Ms O’Rourke and Mr Jones had examined the park records, they should have known that there was some type of arrangement between the park, Mr Maxwell and Ms Roche and they should have taken steps to explore the detail of that arrangement before the hearing. Ms O’Rourke and Mr Jones have provided no explanation as to why this material was not available earlier.

   [4]Transcript page 1-9, lines 44-46.

1. Ms O’Rourke and Mr Jones have also filed a copy of an invoice and an email, both dated 12 November 2013, as evidence of the arrears. They do not explain why this evidence was not available at the hearing. The additional evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence which was before the Magistrate.

1. The learned Magistrate dismissed the claim because he was not satisfied that Ms O’Rourke and Mr Jones had proven their claim. His questions about the tenancy agreement were not difficult (When did it start?[5] How much should have been paid during the tenancy?[6] How much has been paid in total?[7]). Ms O’Rourke incorrectly recalled when the tenancy had begun, and could not answer questions pertaining to the rent owing, or the amount that had been paid. The learned Magistrate was critical of the ledger,[8] which is not a complete record as required by section 88(8) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld).

   [5]Transcript page 1-3, line 24.

   [6]Transcript page 1-3, line 41.       

   [7]Transcript page 1-4, line 8.

   [8]Transcript page 1-4, lines 40, 44

2. Ms O’Rourke and Mr Jones did not produce evidence to support their claim. As managers of an accommodation facility, they should be aware of the law relating to residential tenancies. They should also have some knowledge of the tribunal procedure. That aside, bringing the application as they did, the onus was on them to establish the claim - they had received notice of the date of hearing, and were inadequately prepared.

3. The learned Magistrate’s decision that Ms O’Rourke and Mr Jones had not proven their case is supported by the transcript.  There is nothing in the transcript, or in the evidence that was before the Magistrate, to persuade me that a different view should have been taken.

1. There is no reasonably arguable case that the learned Magistrate was in error. Leave to appeal should be refused.