Cong v Awad [2021] QCATA 25

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Cong v Awad [2021] QCATA 25 PARTIES: DAN CONG (appellant) v KATHERIN AWAD BISHOY AWAD (respondents) APPLICATION NO/S: APL102-20 ORIGINATING APPLICATION NO/S: MCDT 1401-19 MATTER TYPE: Appeals DELIVERED ON: 16 February 2021 HEARING DATE: 8 February 2021 HEARD AT: Brisbane DECISION OF: Member Hughes ORDERS: 1. The application for miscellaneous matters filed by the appellant on 6 August 2020 is refused. 2. The application for miscellaneous matters filed by the respondents on 8 September 2020 is dismissed. 3. Leave to appeal is refused. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – CONTROL OVER PROCEEDINGS – OTHER CASES – - where bare allegation of bias – where applicant was given opportunity to present case and rebut respondent’s case – where appellant had obligation to prove its case 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 Tribunal has mandate to deal with matters quickly – where findings open on evidence – where no reasonably arguable case of Tribunal in error – where no reasonable prospect of substantive relief on appeal -- 1 of 9 -- 2 LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – OBLIGATIONS, PROHIBITED MATTERS AND PROTECTION FOR LESSEES – RENT - where landlord claimed compensation – where tenants claimed compensation – where findings of fact about water efficiency, fair wear and tear and condition of property based on evidence adduced at hearing – where Tribunal has mandate to deal with matters fairly, quickly and economically – where Tribunal will not usually disturb findings of fact on appeal – where findings open on the evidence – where appeal is not opportunity for party to reargue their case - where ground of appeal dismissed PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where strong indicator against awarding of costs – where nothing to displace usual position that each party must pay own costs Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 28, s 100, s 102 Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 166, s 169 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Armstrong v Kawana Island Retirement Village [2011] QCATA 324 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Bradlyn Nominees v Saikovski [2012] QCATA 39 Cachia v Grech [2009] NSWCA 232 Chambers v Jobling (1986) 7 NSWLR 1 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Coulton v Holcombe (1986) 162 CLR 1 Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226 Dearman v Dearman (1908) 7 CLR 549 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Fox v Percy (2003) 214 CLR 118 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 House v The King (1936) 55 CLR 499 King v ASIC [2018] QCA 352 Lovell v Lovell (1950) 81 CLR 513 Mataitini v North Shore Realty Sunshine Coast [2020] QCATA 154 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 -- 2 of 9 -- 3 Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611 Olindaridge Pty Ltd v Wagner & Tracey [2014] QCATA 207 Piric & Anor v Claudia Tiller Holdings Pty Ltd [2012] QCATA 152 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412 Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe [2013] QCATA 212 Reihana v Beenleigh Show Society [2019] QCATA 91 Slater v Wilkes [2012] QCATA 12 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: Self-represented REASONS FOR DECISION What is this appeal about? [1] An application for leave to appeal is not an occasion to re-try the case presented at trial, as if the latter were a ‘preliminary skirmish’.1 This edict is amplified in appeals from the busy and demanding minor civil disputes jurisdiction, where thousands of applications are processed and determined each year2 and the Tribunal’s statutory mandate to conduct proceedings in an informal way that minimises costs to parties and is as quick as is consistent with achieving justice,3 is at its most acute. [2] The Tribunal’s reasons are not to be scrutinised ‘with an eye keenly attuned to error’.4 The Tribunal must act fairly5 and according to principles of natural justice,6 with as little formality and as much speed as matters permit.7 An appellable error is not demonstrated by identifying other possibilities not mentioned or not apparently considered - the Tribunal may decide the case in a way that does not require the determination of a particular submission and can therefore be simply put aside.8 The 1 Mataitini v North Shore Realty Sunshine Coast [2020] QCATA 154, [12] citing Coulton v Holcombe (1986) 162 CLR 1, 7. 2 Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe [2013] QCATA 212, [46] (Wilson J). 3 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 4(c) (‘QCAT Act’). 4 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, [46]. 5 QCAT Act, s 28(2). 6 Ibid s 28(3)(a). 7 Ibid s 28(3)(d). 8 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 269, 270 (‘Soulemezis v Dudley’). -- 3 of 9 -- 4 Tribunal may have unexpressed findings of fact.9 The primary reasons need only refer to the relevant evidence, material findings of fact (and reasons for those findings) and the applicable law and reasons for applying it.10 [3] It is within this context that an Adjudicator awarded Dan Cong rent arrears and dismissed her claim for compensation against her former tenants, Bishoy Awad and Katherin Awad. Ms Cong’s grounds of appeal about the learned Adjudicator not making certain findings, not referring to all the evidence, not providing reasons for not accepting evidence favourable to her own case together with a bare allegation of bias do not align with the Tribunal’s mandate to conduct proceedings in a way that is fair, just, economical, informal and quick,11 or with established principle.12 Were the findings open on the evidence? [4] An application for leave to appeal is not, and should not be, an attempt to reargue a party’s case at the initial hearing.13 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.14 Leave will not be granted where a party seeks to re- argue the case on existing or additional evidence.15 [5] Despite this, Ms Cong’s application for leave to appeal focused on the learned Adjudicator’s findings of fact and sought to rely on now dated photographs that were undated at the original hearing, as “fresh evidence”.16 The appeal process is not an opportunity for a party to again present their case.17 It is the means to correct an error by the Tribunal that decided the proceeding.18 [6] The Appeal 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 fresh evidence must satisfy three tests:19 Could the parties 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? [7] A party who provides deficient evidence at the original hearing cannot expect a different outcome by resubmitting it in another form to “shore up their case”. All parties have an obligation to act in their own best interests:20 9 Ibid, 272. 10 Armstrong v Kawana Island Retirement Village [2011] QCATA 324, [13]. 11 QCAT Act, s 3(b). 12 King v ASIC [2018] QCA 352, citing with approval Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430. 13 Bradlyn Nominees v Saikovski [2012] QCATA 39. 14 Ibid. 15 Piric & Anor v Claudia Tiller Holdings Pty Ltd [2012] QCATA 152, [12] (Wilson J). 16 Application for miscellaneous matters filed 6 August 2020. 17 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39, [9]. 18 Ibid. 19 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408. 20 Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226, [13], citing with approval Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217 (citations omitted). -- 4 of 9 -- 5 The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, “… the public as a whole, not merely the parties to the proceedings”. Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties. [8] It was always incumbent upon Ms Cong to provide her best evidence at the original hearing. Ms Cong cannot rely upon her own failure to produce the best version of her photographs at the original hearing as a ground to introduce new evidence. [9] Ms Cong did not explain why the “fresh” documents were not tendered at the hearing, other than her “not realizing the settings of date absence” when printing them. Failing to properly prepare or present a party’s case is not a ground of appeal. Ms Cong cannot seek to introduce rebuttal evidence after the Tribunal has delivered its findings at a hearing. As alluded to by the learned Adjudicator, the onus is always upon Ms Cong to present her case and bring all relevant material to the hearing.21 Ms Cong had an obligation to act in her own best interests.22 This alone is sufficient to not allow the photographs into evidence. [10] Moreover, the Appeal Tribunal is not satisfied that the photographs would make any difference. Although the learned Adjudicator noted the original photographs were undated,23 his reasons reveal that he still considered them when delivering his findings.24 The learned Adjudicator admitted them into evidence and weighed them accordingly. [11] Even accepting that the learned Adjudicator may have attached more weight to dated photographs, the Appeal Tribunal is not satisfied they are sufficient to displace the learned Adjudicator’s findings of no damage above fair wear and tear and the property not being water efficient.25 The photographs of the carpet and walls were not the sole basis for the learned Adjudicator’s findings and show nothing more than minor damage. A possible alternative inference of damage beyond fair wear and tear does not prove it as a fact. The photograph of the final water meter reading does not disprove the learned Adjudicator’s finding about lack of water efficiency. Ms Cong did not discharge her burden of proof. [12] Attempting to explain away the learned Adjudicator’s finding with a possible alternative inference does not demonstrate error. It is not an error to prefer one version of events to another.26 The Appeal Tribunal is not satisfied that the photographs have sufficient evidential weight to overturn the learned Adjudicator’s original findings. 21 Transcript dated 30 January 2020, page 1-39, lines 34 to 44. 22 Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226, [13], citing with approval Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217 (citations omitted). 23 Transcript dated 30 January 2020, page 1-34, lines 12 to 13. 24 Transcript dated 30 January 2020, page 1-41, lines 15 to 40; page 1-42 lines 5 to 43; page 1-43, lines 36 to 40. 25 Transcript dated 30 January 2020, page 1-40, lines 45 to 47; page 1-41, lines 1 to 13 and lines 24 to 40; page 1-42, lines 5 to 15. 26 Slater v Wilkes [2012] QCATA 12, [6]. -- 5 of 9 -- 6 The Application for miscellaneous matters filed by the appellant on 6 August 2020 is refused. The appeal must proceed on the evidence before the learned Adjudicator. [13] To arrive at his decision, the learned Adjudicator made findings that the property was not water efficient, any damage was not beyond fair wear and tear, the carpet was not materially different from its condition at the start and that the tenants’ counter- application was out of time and not sufficiently supported.27 These are findings of fact. An appellate tribunal may only interfere if the conclusion is ‘contrary to compelling inferences’ in the case.28 [14] The learned Adjudicator referred to relevant evidence provided at the original hearing to support his findings, including the revocation of the water efficiency certificate, the entry and exit condition reports and photographs and explained when he did not accept evidence and why.29 In dismissing parts of Ms Cong’s application, the learned Adjudicator did not prefer Ms Cong’s evidence over that of the tenants. That is unremarkable. Quotes need not be accepted as evidence of damage where they are not attached to any sworn statements and their authors are not made available for cross- examination.30 To accept the quotes as evidence of damage in these circumstances would deny the tenants procedural fairness.31 [15] The learned Adjudicator referred to relevant evidence to support his ultimate findings, which he was entitled to weigh accordingly. If the learned Adjudicator’s reasons do not specifically refer to an item of evidence, it does not mean it was overlooked. Rather, it is reasonable to infer that the learned Adjudicator did not consider it relevant or sufficient to outweigh the evidence upon which findings were made. [16] Landlords are entitled to have tenants pay water usage charges only if the premises are individually metered,32 the Tenancy Agreement provides that the tenant must pay,33 and the premises are water efficient.34 Once the learned Adjudicator found that the premises were not water efficient (as he was entitled), Ms Cong could only claim for water use more than an amount for a reasonable quantity supplied to the property.35 [17] Ms Cong referred to the summary of the tenants’ water bills with city daily average use.36 However, use above “city daily average use” does not necessarily provide a valid comparison to establish the tenants’ use was excessive. The Tenancy Agreement notes four occupants.37 Ms Cong was therefore aware of the number of occupants at the start of the tenancy. No evidence was adduced of how the tenants’ use was excessive for this number of occupants.38 [18] Moreover, the tenants gave evidence the pool filter was leaking.39 It is implicit that the learned Adjudicator accepted this and was not satisfied that Ms Cong had adduced 27 Transcript dated 30 January 2020, pages 1-40 to 1-44. 28 Chambers v Jobling (1986) 7 NSWLR 1, 10. 29 Transcript dated 30 January 2020, pages 1-40 to 1-44. 30 Olindaridge Pty Ltd v Wagner & Tracey [2014] QCATA 207, [37] – [43]. 31 Ibid, [43]. 32 Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 166(2)(b). 33 Ibid, s 166(2)(c). 34 Ibid, s 166(3). 35 Ibid, s 166(4). 36 Statement by Dan Cong filed 4 August 2020, p 3. 37 Item 15. 38 Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 169(4)(e). 39 Transcript dated 30 January 2020, page 1-21, lines 22 to 23. -- 6 of 9 -- 7 sufficient evidence in rebuttal. It is not an error for the learned Adjudicator to not explain away each and every item of evidence not considered relevant or of sufficient weight.40 [19] The Appeal Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.41 Having considered material filed with the application and oral evidence from the parties at the hearing, the learned Adjudicator was in the best position to assess credit and make findings accordingly. A decision cannot properly be called erroneous, simply because the learned Adjudicator preferred one conclusion to another possible conclusion.42 The learned Adjudicator’s findings were open on the evidence. [20] This ground of appeal is dismissed. Did the Tribunal miscalculate rent arrears? [21] Ms Cong submitted that the rent ledger shows that the learned Adjudicator should have awarded her an extra $373 for rent arrears.43 However, Ms Cong’s ‘Summary of tenant water bills ledger’ shows she incorrectly applied this to water use.44 Landlords and their agents are not entitled to unilaterally apply rent money to whatever other amounts they might consider to be payable. Doing so is a misapplication of money paid for a specific purpose and circumvents due process, particularly where both liability and the amounts may be in dispute. [22] The water ledger should never have had a credit of $373. The rent ledger credit of $527 on 20 August 2019 was therefore always incorrect and should have always been $900.45 The learned Adjudicator did not err in calculating the rent owing. [23] This ground of appeal is dismissed. Did the Tribunal act with bias? [24] Bias is a serious allegation. The threshold to prove bias is high: … if a fair-minded lay observer might reasonably apprehend that the decision- maker might not bring an impartial mind to the determination of the issues that he or she must decide.46 [25] Allegations of bias require more than a bare allegation.47 The learned Adjudicator did not “ignore the [entry] report without a legal basis”.48 Rather, he expressly referred to both the entry and exit reports and explained why they were not significant. That does not show bias. It also provides the legal basis for not accepting the report(s). [26] Both parties filed material to support their case and were given an opportunity to present their case and adduce rebuttal evidence, consistent with the objects of the 40 Soulemezis v Dudley (n 8). 41 Dearman v Dearman (1908) 7 CLR 549, 561; Fox v Percy (2003) 214 CLR 118, 125-126. 42 Slater v Wilkes [2012] QCATA 12, [6], citing Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611. 43 Rent ledger from 2 July 2018 to 14 October 2019. 44 Summary of water tenant bills from 2 July 2018 to 17 October 2019. 45 The learned Adjudicator ultimately did not allow the claim for water use. That finding was open on the evidence. 46 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344-5 [6]. 47 Statement by Dan Cong filed 4 August 2020, p 5. 48 Statement by Dan Cong filed 4 August 2020, p 5. -- 7 of 9 -- 8 QCAT Act and within the demands of the jurisdiction. Having read the transcript, the Appeal Tribunal is satisfied that the allegation of bias is speculative and without basis. The learned Adjudicator conducted the hearing appropriately. [27] This ground of appeal is dismissed. Did the Tribunal err in not awarding costs? [28] The Tribunal’s discretion to award costs is fettered by the strong statutory contra- indicator against the awarding of costs.49 Costs in the Tribunal are not awarded as a matter of course. Each party must pay their own costs,50 unless the interests of justice require the Tribunal to order a party to pay the costs of another party.51 [29] The learned Adjudicator was not satisfied to exercise his discretion to award costs. The Appeal Tribunal will not interfere with the exercise of that discretion unless it can be shown that the Tribunal acted on a wrong principle, or made mistakes of fact affecting the decision, or was influenced by irrelevant matters.52 Just because the Appeal Tribunal might have exercised the discretion differently is not a basis to change the decision; it must be shown that the decision is plainly unjust or unreasonable, and involved a clear misapplication of the discretion.53 [30] Relevant to the issue of costs is the public interest in the efficient use of taxpayer- funded resources, and the interests of other litigants waiting in turn.54 Given that Ms Cong was only partly successful in her claim and the inadequate material from both parties, it was not an error for the learned Adjudicator to not depart from the strong contra-indicator against awarding costs.55 [31] This ground of appeal is dismissed. Should the Appeal Tribunal grant leave to appeal? [32] In determining whether to grant leave, the Tribunal will consider established principles including: whether there is a reasonably arguable case of error in the primary decision;56 whether there is a reasonable prospect that the appellant will obtain substantive relief;57 whether leave is needed to correct a substantial injustice caused by some error;58 and 49 QCAT Act, s 100; Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412, [29] (Wilson J). 50 QCAT Act, s 100. 51 Ibid, s 102. 52 House v The King (1936) 55 CLR 499, 504. 53 Lovell v Lovell (1950) 81 CLR 513. 54 Reihana v Beenleigh Show Society [2019] QCATA 91, [25]. 55 QCAT Act, s 100; Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412, [29] (Wilson J). 56 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 57 Cachia v Grech [2009] NSWCA 232, 2. 58 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. -- 8 of 9 -- 9 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.59 [33] Having read the transcript and considered the evidence, the Appeal Tribunal finds nothing to indicate that the learned Adjudicator acted on a wrong principle, or made mistakes of fact affecting his decision, or was influenced by irrelevant matters. The evidence was capable of supporting the Tribunal’s conclusions. [34] The learned Adjudicator’s reasons set out the evidence he considered relevant and the basis for his findings. The learned Adjudicator’s findings were open on the evidence. Nothing in the material or the transcript persuades the Appeal Tribunal that the learned Adjudicator’s findings were not open. [35] The learned Adjudicator’s decision was therefore appropriate, and the Appeal Tribunal can find no reason to come to a different view. 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. Leave to appeal is refused. [36] Because the application for leave to appeal was determined after a full oral hearing and leave to appeal has been refused, the application by the respondents for an oral hearing60 is otiose and is dismissed. 59 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. 60 Application for miscellaneous matters filed 8 September 2020. -- 9 of 9 --