Burness v Richardson and Wrench & Ors [2020] QCATA 149

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Burness v Richardson and Wrench & Ors [2020] QCATA 149 PARTIES: STUART LEE BURNESS (applicant/appellant) v RICHARDSON AND WRENCH, TERRY SAUNDERS AND BEVERLEY SAUNDERS (respondent) APPLICATION NO/S: APL110-20 ORIGINATING APPLICATION NO/S: Caboolture MCDT0200/20 MATTER TYPE: Appeals DELIVERED ON: 6 October 2020 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Dr J R Forbes, Member ORDERS: The application for leave to appeal is dismissed. CATCHWORDS: APPEAL – APPLICATION FOR LEAVE TO APPEAL – residential tenancy dispute – where notice to remedy default in payment of rent - where dispute as to quantum of arrears - where tenant evicted on ground of failure to leave – where tenant seeks to add a defence not raised at trial or in application for leave to appeal – where lessor seeks to adduce fresh evidence – where latter application unnecessary – where no reasonably appellable error demonstrated – where nature and limitations of application for leave considered – where application for leave dismissed Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 2, s 3, s 32, s 142 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 293, s 325, s 350 s 351 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Coulton v Holcombe (1986) 162 CLR 1 Davison v Vickery’s Motors Ltd (in liq) (1925) 37 CLR 1 -- 1 of 6 -- 2 Devon v Capital Finance Australia Limited [2014] VSCA 73 Devries v Australian National Railways Commission (1993) 177 CLR 472 Fox v Percy (2003) 214 CLR 118 House v The King (1936) 55 CLR 499 Pappas v Meiklejohn’s Accountants [2017] QCATA 60 PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 R v Vaughan [2011] QCA 234 Robinson v Corr [2011] QCATA 302 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 The Pot Man Pty Ltd v Reaoch [2011] QCATA 318 Water Board v Moustakas (1988) 180 CLR 491 APPEARANCES & REPRESENTATION: 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 The proposed appellant1 Stuart Lee Burness (`Burness’) leased residential premises at Caboolture (`the premises’) in January 2020. At the material times the landlords were Terry and Beverley Saunders, whose managing agent was Richardson and Wrench, Caboolture (`the agent’). On 28 January 2020 a tenancy agreement (`the lease’) in Form 18a of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (`the Act’) was executed by the parties for a term commencing on that date and ending on 28 April 2020. The lease contains a common form clause authorising the agent to sue and to be sued on behalf of the landlords2, but in this instance the latter have elected to be co-parties with the agent.3 From now on, for convenience, I shall refer to those three parties as `R & W’. On 12 March 2020 R & W served a notice to remedy breach4 upon Burness alleging non-payment of rent. Absent compliance with that demand R & W served a notice to leave5 on 23 March 2020 directing Burness to vacate the premises by midnight on 1 April 2020. Burness did not comply, and on 9 April 2020 R & W commenced these proceedings, seeking a termination order6 and, if necessary, a warrant of possession.7 The matter came before the primary tribunal on 28 April 2020. Burness claimed that his rent payments were only two weeks in arrears, as it had `always been’.8 But R & 1 Leave to appeal is required: QCAT Act s 142(3). 2 Lease clause 43(2). 3 As in the initial application filed on 9 April 2020. 4 Form 11, as prescribed by the Act s 325. 5 Form 12. 6 The Act s 293. 7 The Act ss 350-351. 8 T page 2 lIne s 39-44. -- 2 of 6 -- 3 W, for its part, asserted that the true figure, at time of trial, was 5 weeks, resulting in a debt of $1,537.72.9 On this essential point of non-payment of rent the tribunal preferred the evidence of R & W, supported, as it was, by extracts from the company’s business records.10 The credibility of the tenant’s case was not accepted.11 The tribunal’s finding as to the quantum of arrears is not challenged. The only other evidence adduced by Burness at the trial was a medical practitioner’s statement comprising, in substance, less than two lines.12 There is nothing in this material to indicate that the Member’s discretion miscarried. The Member was satisfied that R & W duly completed the statutory preliminaries to its application.13 Those findings are not contested. Accordingly the lease was terminated and a warrant of possession issued.14 On or about 8 May 2020 Burness left the premises.15 Burness now seeks leave16 to appeal the primary decision17 upon these grounds: (a) Representative us [sic] unable to attend due to technical difficulties. (b) The rent arrears were from a previous lease with myself and Samuel Rosenbaum. (c) Due to the previous rent arrears my rent was in a perpetual state of arrieres [sic]. (d) I can pay the outstanding rent over the next couple of months with the Emergency COVID-19 Centrelink Payments and maintain my current rent. (e) I am in a high risk group due to my health condition already provided to the tribunal. The primary decision was stayed pending the determination of the application for leave.18 Ground (a) The `technical difficulties’ mentioned in this somewhat obscure submission are not specified. However, the facts are that Burness appeared in person at the trial conducted by audiolink.19 The present application is conducted on the papers, with written submissions on Burness’ behalf by his `representative’ Samuel Rosenbaum.20 9 T page 3 line 36; page 5 line 18. 10 T page 7 lines 1 and 13; Tenant payment history 6 December 2019 to 3 April 2020. 11 T page 7 line 2. 12 Letter to tribunal by Dr Graham Neilsen dated 20 April 2020. 13 T page 5 lines 21-26. See notice to remedy breach issued 12 March 2020; notice to leave issued 23 March 2020. 14 Transcript of proceedings 28 April 2020 (`T’) page 7 lines 21-30. 15 Letter of Burness’ representative to Tribunal 5 June 2020. 16 As required by s 142 of the QCAT Act. 17 Application for leave to appeal filed 29 April 2020. 18 Directions 15 May 2020 paragraph 1. 19 As appears at T page 2 lines 19-25. 20 Letter Rosenbaum to QCAT dated 5 June 2020. -- 3 of 6 -- 4 Ground (b) R & W submitted, and the tribunal accepted, that the arrears of rent were accrued in the period of seven weeks concluding on the trial date, 28 April 2020. The subject lease commenced on 1 January 2020, some seventeen weeks before the trial. The only tenant named in that lease is Burness. Ground (c) The meaning and relevance of this assertion are by no means clear. Burness is bound by the Member’s finding, as judge of fact and credit, that he was 35 days in arrears. This submission does not point to any error of law or miscarriage of discretion on the tribunal’s part. It is simply an assertion in conflict with established facts. Ground (d) This is simply a statement of future intent, which does not detract from R & W’s cause of action, or the tribunal’s decision upon it. It is a plea that was made to the primary decision maker. It was a matter within his discretion; he was decidedly unimpressed by it21 and so rejected it as a reason for refusing the orders sought. No error of law is involved. Ground (e) The same applies to this submission. It does not disclose any error of law. As already noted, the doctor’s opinion, such as it is, is generalised and sketchy in the extreme, and does nothing to dispose of the landlords’ case. It is not an appellable error that the decision maker saw it in that light.22 A point not previously raised Burness’ submission dated 5 June 2020 – some six weeks after the primary decision, and a similar period after the filing of this application for leave – seeks to raise an entirely new issue – Further to the previous decisions made, we wish to raise concerns regarding the actions of [R & W] and negligence in [not?] ensuring the financial stability of prospective tenants [sic] to maintain payment obligation [sic] under the lease agreement. Effectively this late submission seeks to raise a defence not mentioned at the trial, or, indeed, in the application for leave. Apart from `very exceptional’23 circumstances, which do not exist here, a point may not be raised for the first time on appeal. More than once it has been held by this [High] Court that a point cannot be raised for the first time on appeal when it could possibly have been met by calling evidence below ... the rule is strictly applied.24 Where a point is not taken in the court below, and evidence [to support it] could have been given there ... it cannot be taken afterwards.25 21 T page 4 line 5. 22 T page 5 line 40. 23 Devon v Capital Finance Australia Limited [2014] VSCA 73 at [73]. 24 Water Board v Moustakas (1988) 180 CLR 491 at [13]. 25 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438. -- 4 of 6 -- 5 The conduct of the cause at the trial is governed by the questions [then] asked of the witnesses ... a party is, and ought to be bound by the course of the trial.26 Absent this rule a party who has come to meet a particular case would be suddenly and unfairly confronted by a substantially different case. Further, litigation might be extended indefinitely, placing an unacceptable burden on private and public resources and time. There is a `high public interest’ in conserving the resources of the courts, and in finality of litigation27 - a fortiori in a jurisdiction designed to act speedily, economically and without undue technicality.28 And there are, after all, other litigants in the queue. The allegation of negligence cannot be entertained at this stage. However, assuming but not deciding that the suggested duty of care existed, it is probably met by R & W’s response,29 if that evidence were accepted. But be that as it may be, this comment is purely academic, because for the reasons set out above, the negligence point is inadmissible. For the same reasons, it is unnecessary to consider R & W’s application30 to adduce fresh evidence. Nature and limits of an application for leave It may be helpful to offer some notes on this subject. The trial is not a mere `preliminary skirmish’.31An application for leave to appeal is not an opportunity to re-run the trial, or to `second guess’ the primary decision-maker on matters of fact or credit. The legislative policy of the QCAT Act is that primary decisions should usually be final. That is why leave to appeal in a minor civil dispute is required. An application for leave is not an occasion to repeat or to reargue evidence rejected by the trial judge, or to present material that could have been led at first instance, but was not. It is not nearly enough for an applicant to express disappointment, or to entertain a subjective feeling that justice has not been done.32 An applicant for leave must show that it is reasonably arguable that the subject decision is affected by legal error, or involves a finding unsupported by any evidence, or is `glaringly improbable’.33 Assessments of the relative weight of competing evidence are seldom disturbed.34 Discretionary decisions are especially difficult to disturb.35 26 Davison v Vickery’s Motors Ltd (in liq) (1925) 37 CLR 1 at 35 per Starke J. 27 R v Vaughan [2011] QCA 234 at [5]; Pappas v Meiklejohn’s Accountants [2017] QCATA 60 at [10] (Thomas QC). 28 QCAT Act ss 2-3; The Pot Man Pty Ltd v Reaoch [2011] QCATA 318 at [9] per Wilson P; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 217. 29 Statutory declaration of Karen George sworn 10 June 2020. 30 Application for Miscellaneous Matters filed 10 June 2020, ordered to be treated as an application for leave to adduce fresh evidence by Order 7 July 2020, paragraph 1. 31 Coulton v Holcombe (1986) 162 CLR 1 at 7. 32 Robinson v Corr [2011] QCATA 302 at [7]. 33 Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 per Brennan, Gaudrom and McHugh JJ. 34 Fox v Percy (2003) 214 CLR 118 at 127. 35 House v The King (1936) 55 CLR 499 at 505; PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [5]. PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [5]. -- 5 of 6 -- 6 It is not legal error to prefer one version of the facts to another, or to give less weight to one party’s case than he or she thinks it deserves. There is no appellable error in making a decision with which other reasonable minds may differ. Findings will not be disturbed where they have rational support in the evidence, even if another reasonable view is available.36 If there is evidence, or if there are available inferences which compete for the judge’s acceptance, no error of law occurs simply because the judge prefers one version of evidence to another or one set of inferences to another. This is his function. ... Even if the evidence is strongly one way the Appeal Court may not intervene simply because it reaches a different conclusion and this even if it regards the conclusion of the trial judge against the weight of evidence.37 These are the principles that must be applied by the appeal tribunal where leave to appeal is sought. Conclusion Burness has not demonstrated any reasonably appellable error in the subject decision, and accordingly the application for leave must be dismissed. ORDER 1. The application for leave to appeal is dismissed. 36 Fox v Percy (2003) 214 CLR 118 at 125-126. 37 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151. -- 6 of 6 --