Q Pro Realty v Smith

[2020] QCATA 114

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Q Pro Realty v Smith [2020] QCATA 114

PARTIES:

Q PRO REALTY

(appellant)             

v

SIMONE JANE SMITH

(respondent)

APPLICATION NO/S:

APL278-19

ORIGINATING APPLICATION NO/S:

MCDT036/19

MATTER TYPE:

Appeals

DELIVERED ON:

12 August 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

Leave to appeal refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – interference with findings of Tribunal below – functions of appellate tribunal – where no valid ground of appeal raised – where findings open on evidence – where no reasonably arguable case of Tribunal in error – where no reasonable prospect of substantive relief on appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4

Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39
Cachia v Grech [2009] NSWCA 232
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

REPRESENTATION:

Applicants:

Self-represented

Respondent:

Self-represented

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

1. An Adjudicator ordered Q Pro Realty pay $1,600.00 to Simone Smith for loss of amenity from a leaky and unclean pool. 

2. Q Pro Realty has applied for leave to appeal that decision.

3. In determining whether to grant leave, the Tribunal will consider established principles including:

   (a)whether there is a reasonably arguable case of error in the primary decision;[1]

   (b)whether there is a reasonable prospect that the appellant will obtain substantive relief;[2]

   (c)whether leave is needed to correct a substantial injustice caused by some error;[3] and

   (d)whether there is a question of general importance upon which further argument, and a decision of the Appeal 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, 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, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580.

4. Q Pro Realty appealed on the basis that the learned Adjudicator did not make a determination on Ms Smith’s claim for compensation for pool chemicals and refund of water invoices.

5. The appeal process is not an opportunity for a party to again present their case.[5] It is the means to correct an error by the Tribunal that decided the proceeding.[6] The minor civil disputes jurisdiction requires the Tribunal to deal with matters fairly, quickly and economically.[7]

   [5]Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39, [9].

   [6]Ibid.

   [7]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4.

6. This is not a case where the learned Adjudicator’s reasons ignored or overlooked the claim for compensation. His reasons explicitly made no findings on whether compensation was owing, which he left open for a later proceeding.[8] The learned Adjudicator discharged his legal obligation to provide reasons.

   [8]Transcript, page 1-10, lines 28 to 32, lines 42 to 46; page 1-11, lines 1 to 41; page 1-12, lines 10 to 36; page 1-14, lines 9 to 45.

7. The learned Adjudicator’s findings were based on loss of amenity.[9] The learned Adjudicator’s finding of loss of amenity was open on the evidence. No substantial injustice arises from making no findings on compensation. Compensation could only have been awarded from a breach of the Tenancy Agreement. Having not made any findings of a breach, it was appropriate not to award compensation. The learned Adjudicator left the question open for a later proceeding. It was open for him to do this.

   [9]Transcript, page 1-10, lines 28 to 32, lines 42 to 46; page 1-11, lines 1 to 41; page 1-12, lines 10 to 36; page 1-14, lines 9 to 45.

8. The learned Adjudicator’s finding on loss of amenity has no bearing on the ultimate question of compensation and therefore does not give rise to any substantial injustice leading to appellable error. 

9. Nothing in the material or the transcript persuades the Appeal Tribunal that the findings were not open to the Tribunal. The Tribunal’s finding of loss of amenity for the relevant period was open on the evidence.

10. The Tribunal’s decision was therefore appropriate and I can find no reason to come to a different view.

    Should the Appeal Tribunal grant leave to appeal?

11. Leave will not be granted where a party simply desires to re-argue the case on existing or additional evidence.[10] A clear purpose of the requirement for leave, before a party has the right to appeal, is to prevent any attempt to simply conduct a retrial on the merits of the case.[11] An application for leave to appeal is not, and should not be an attempt to reargue a party’s case at the initial hearing.[12]

    [10]Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152, [12] (Wilson J).

    [11]Ibid.

    [12]Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39.

12. Having read the transcript and considered the evidence, I find nothing to indicate that the Tribunal acted on a wrong principle, or made mistakes of fact affecting their decision, or were influenced by irrelevant matters. The evidence was capable of supporting the Tribunal’s conclusions.

13. There is no question of general importance for the Appeal Tribunal to determine. There is no reasonably arguable case that the Tribunal 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.

14. Leave to appeal is refused.