Ray White Ipswich Property Management v Burns

[2011] QCATA 123

CITATION: Ray White Ipswich Property Management v Burns [2011] QCATA 123

PARTIES:	Ray White Ipswich Property Management
v
Mr Richard Burns

APPLICATION NUMBER:              APL328-10             

CITATION: Ray White Ipswich Property Management v Schlecht [2011] QCATA

PARTIES:	Ray White Ipswich Property Management
v
Ms Deborah Schlecht

APPLICATION NUMBER:              APL220-10             

MATTER TYPE: Appeals

HEARING DATE:   On the papers

HEARD AT:     Brisbane

DECISION OF: Kerrie O’Callaghan, Senior Member
Peta Stilgoe, Member

DELIVERED ON:     23 May 2011

DELIVERED AT:   Brisbane

ORDERS MADE:       Leave to appeal refused.

CATCHWORDS: 

RESIDENTIAL TENANCY – whether leave to appeal from a minor civil dispute

PROCEDURE – whether leave to produce fresh evidence on appeal

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

Ms O’Callaghan

1. In this matter the Appeal Tribunal consisted of Ms Stilgoe, QCAT Member and me.  I have had the benefit of reading her reasons in draft.  I agree with her reasons, and her conclusions, and the order she proposes.

Ms Stilgoe

1. These two appeals arise from the same proceeding in the tribunal’s minor civil dispute jurisdiction.  Mr Burns and Ms Schlecht were tenants in a property managed by Ray White.  At the end of the tenancy, Ray White sought payment of the bond to the lessor to compensate for damaged carpet in the sum of $900.  The learned Adjudicator dismissed Ray White’s claim and ordered that the bond be paid to Mr Burns and Ms Schlecht.

1. Ray White has appealed that decision.  The grounds of the appeal are:

a)    The evidence given at the original hearing was inconclusive.

b)    Ray White has evidence that Mr Burns and Ms Schlecht did damage the carpet but the evidence was not presented at the original hearing.  Ray White would like the opportunity to present that evidence at a new hearing.

1. Because this is an appeal from a decision in the tribunal’s minor civil dispute jurisdiction, leave is necessary.  Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief.  Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?

1. The learned Adjudicator is required to determine the dispute based upon the evidence presented on the day.  Ray White, as applicant, had the onus of proving that the lessor was entitled to compensation.  If the evidence was inconclusive, then it failed in that task and the learned Adjudicator’s decision was appropriate.

1. Ray White has sought leave to produce new evidence to prove that the carpets were new when Mr Burns and Ms Schlecht moved into the house.  It also now asserts that the entry report, which records damage to the carpet in question, “was not updated”.

1. New evidence will ordinarily only be allowed at an appeal when it could not, by reasonable diligence, have been obtained for the original hearing, is credible, and might have produced an opposite result[1].

   [1]            Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435.

1. The tribunal’s power to allow fresh evidence on appeal is not a mechanism by which parties can repair the holes in their original case.  Ray White knew it was part of the lessor’s case that the carpets were new at the commencement of the tenancy.  As an experienced rent roll manager, it should have known that the entry report would be an important piece of evidence.  The photos that it now wants to produce to the tribunal were taken in May 2009, so they must have been available to Ray White at the original hearing.  Ray White has not explained why the photos were not produced to the learned Adjudicator.

1. Even if the photographs were allowed on appeal, I am not satisfied that they would produce an opposite result.  Mr Burns and Ms Schlecht gave evidence that the windows of the house were leaking, saturating the carpet.  They produced photos in support of that claim.  Ray White’s new evidence does not answer that allegation satisfactorily.

1. Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[2]  

   [2]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 197 ALR 201 at 207, 208.

1. I am satisfied that the evidence is capable of supporting the learned Adjudicator’s decision.  There is no reasonable prospect that the lessor would obtain substantive relief on appeal; there is no question of general importance that requires a decision of the appeal tribunal and the lessor will not suffer a substantial injustice.

1. Leave to appeal should be refused.