Di Santo v Miller [2018] QCATA 25

CITATION: Di Santo v Miller [2018] QCATA 25 PARTIES: Christopher Di Santo (Appellant) v Zaid Miller (Respondent) APPLICATION NUMBER: APL209-17 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Hughes DELIVERED ON: 7 February 2018 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – INTERFERENCE WITH FINDINGS OF FACT – ADMISSION OF FURTHER EVIDENCE – where member’s decision set out evidence and basis for its findings – where applicant applied for leave to appeal – where applicant sought to introduce evidence not adduced at first instance – whether evidence should be admitted – whether evidence capable of supporting Tribunal’s findings – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 143 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39 British Westinghouse Electric Co Ltd v Underground Electric Railways Co Ltd [1912] AC 673 Cachia v Grech [2009] NSWCA 232 Chambers v Jobling (1986) 7 NSWLR 1 Clarke v Japan Machines (Australia) Pty Ltd -- 1 of 7 -- 2 [1984] 1 Qd R 404 Dearman v Dearman (1908) 7 CLR 549 Glenwood Properties Pty Ltd v Delmoss Pty Ltd & Anor [1986] 2 Qd R 388 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611 Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Selvanayagam v University of the West Indies [1983] 1 All ER 824 Slater v Wilkes [2012] QCATA 12 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). REASONS FOR DECISION What is this appeal about? [1] Christopher Di Santo filed a claim against his former Tenant, Zaid Miller, for compensation of $5,706.99. Mr Miller conceded all but the claim for rent arrears of $2,800.00. An Adjudicator awarded Mr Di Santo his claims totalling $2,906.99 but dismissed his claim for rent arrears. [2] Mr Di Santo wants to appeal that decision. [3] Because this is an appeal from a minor civil dispute, leave is required.1 [4] 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;2 b) whether there is a reasonable prospect that the appellant will obtain substantive relief;3 c) whether leave is needed to correct a substantial injustice caused by some error;4 and 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 143(3). 2 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 3 Cachia v Grech [2009] NSWCA 232, 2. 4 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. -- 2 of 7 -- 3 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.5 [5] I will address the grounds of appeal below. Was the evidence capable of supporting the Tribunal’s findings? [6] Mr Di Santo’s appeal seeks to challenge the learned Adjudicator’s finding that the outstanding rent of $4,900.00 was paid to Mr Di Santo’s mother, Mrs Julie Di Santo, on 21 February 2017 - via Mr Sam Taylor. [7] Mr Di Santo attached a number of documents to his appeal that he claimed supported his mother’s version of events – namely, that she did not collect the rent: a) Telephone records obtained pursuant to a Notice to Produce issued 26 May 2017; b) Statutory Declaration of Gerardo Di Santo sworn 3 August 2017; c) Dispute Resolution Request dated 20 February 2017; d) Email Julie and Gerry Di Santo to Residential Tenancies Authority dated 21 February 2017; e) Affidavit of Julie Ellen Di Santo sworn 28 April 2017; f) Nursing Discharge Summary dated 13 July 2017; g) Medicare Claims History for Julie E Di Santo from 24/07/14 to 24/07/17; h) Copy of two text messages dated 6 January 2017; i) Water usage alert dated 17 February 2017; j) Bundle of text messages dated 22 February 2017; k) Copy of text message dated 20 January 2017; l) Bundle of photographs undated; m) Statutory Declaration of William Keith Lake sworn 18 April 2017; n) Copy of text message dated 24 February 2017; o) Copy of two rent receipts dated 29 December 2016 and 7 January 2017; 5 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. -- 3 of 7 -- 4 p) Westpac Bank Statement for Zaid Steven Miller dated 21 April 2017; q) Refund of rental bond form undated; r) Residential Tenancies Authority letter to Christopher Di Santo dated 15 February 2017; s) Email RTA Enquiries to Julie Di Santo dated 5 June 2017; and t) Email Julie Di Santo to RTA dated 4 June 2017. [8] A threshold issue is whether these documents are fresh evidence. This is because 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:6 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? [9] Apart from the documents that post-date the hearing, it is unclear which of this evidence was available at the hearing and would therefore be fresh evidence making it potentially inadmissible. Because of this and to ensure fairness to Mr Di Santo, the appeal will proceed on the basis of admitting these documents into evidence. [10] The learned Adjudicator’s finding that Mr Miller did pay the rent to Mrs Di Santo is a finding of fact. The Appeal Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.7 An appellate tribunal may only interfere if the conclusion is ‘contrary to compelling inferences’ in the case.8 [11] Considering the documents from a view most favourable to Mr Di Santo, they do allow a possible alternative inference that Mrs Di Santo did not attend to collect the rent. But they do not prove this as a fact. Attempting to explain away the learned Adjudicator’s finding with a possible alternative inference does not demonstrate error by the learned Adjudicator. A decision cannot properly be called erroneous, simply because the learned Adjudicator preferred one conclusion to another possible conclusion.9 [12] Mr Di Santo’s Statutory Declaration sworn 3 August 2017 does directly corroborate Mrs Di Santo’s claim that she was not at Pacific Fair on 21 February 2017 to collect the rent. Mr Di Santo is Mrs Di Santos’ husband. He did not attend the hearing to give evidence. His Declaration 6 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408. 7 Dearman v Dearman (1908) 7 CLR 549, 561; Fox v Percy (2003) 214 CLR 118,125- 126. 8 Chambers v Jobling (1986) 7 NSWLR 1, 10. 9 Slater v Wilkes [2012] QCATA 12 at [6], citing Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611. -- 4 of 7 -- 5 is sworn some four months after the hearing and two months after the learned Adjudicator’s decision. No explanation was provided for not providing his evidence earlier. In these circumstances, the Appeal Tribunal is not satisfied that Mr Santos’ Statutory Declaration is sufficiently credible to overturn the learned Adjudicator’s finding. [13] This is because in support of his finding that Mr Miller paid the rent of $4,900.00 to Mrs Di Santo on 21 February 2017, the learned Adjudicator explicitly referred to countervailing evidence including: a) Mr Miler’s bank statement showing a cash withdrawal of $5,000.00 on 21 February 2017;10 b) Mr Miller’s own sworn oral evidence that he gave the money to Mr Taylor to give to Mrs Di Santo;11 c) Mr Taylor’s sworn oral evidence that he gave the money to Mrs Di Santo and asked for a receipt;12 d) Contemporaneous text messages between Mr Miller and Mrs Di Santo where she did not deny the cash payment and focused only on water usage;13 and e) Later correspondence from Mrs Di Santo to Mr Miller that refers to other claims for compensation but makes no mention of any rent outstanding.14 [14] Although the learned Adjudicator noted the telephone records showed no telephone calls to or from Mr Miller’s account to Mrs Di Santo,15 this does not exclude the possibility of other contact, for example, from another account such as Mr Miller’s place of employment.16 It is not an error for the Tribunal to not explain away each and every item of evidence not considered relevant or of sufficient weight.17 It is sufficient that the Tribunal’s reasons set out the evidence it considered relevant and the basis for its findings.18 [15] It is implicit that the Tribunal preferred Mr Miller’s evidence and the surrounding evidence - including corroborative testimony from Mr Taylor - about whether the rent was paid to Mrs Di Santo. Having heard the evidence of both parties and Mr Taylor, the Tribunal was in the best position to assess credibility. The Tribunal referred to the evidence to 10 Transcript, page 1-2, Lines 23 to 24. 11 Transcript, page 1-2, Line 45. 12 Transcript, page 1-3, Lines 1-5, 21. 13 Transcript, page 1-3, Lines 33 to 46, page 1-4, Lines 1 to 3. 14 Transcript, page 1-4, Lines 5 to 16. 15 Transcript, page 1-2, Lines 38 to 40. 16 Transcript, page 1-2, Lines 42 to 45. 17 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 271. 18 Transcript, pages 1-18 to 1-23. -- 5 of 7 -- 6 support its ultimate finding and which it was entitled to weigh accordingly.19 It is not an error to prefer one version of facts to another.20 [16] Nothing in the material or the transcript persuades the Appeal Tribunal that the findings were not open to the Tribunal. The Tribunal’s finding that Mr Miller paid the rent to Mr Taylor who then paid the rent to Mrs Di Santo was open on the evidence. There was evidence of a previous instance of this.21 [17] Having made the finding that Mrs Di Santo did collect the $4,900.00 rent in cash and awarded Mr Di Santo compensation of $2,906.99 for the other items, the Tribunal then offset landlord insurance of $2,100.00 already paid to Mr Di Santo. The Courts adopt a net loss approach to awarding damages, whereby the gains made by a person who suffers loss as a result of the breach (for example, an insurance payout) must be set off against any losses arising from the breach.22 This is to prevent a person recovering twice for their loss. The learned Adjudicator’s decision was therefore entirely appropriate and I can find no reason to come to a different view. Should the Appeal Tribunal grant leave to appeal? [18] Leave will not be granted where a party simply desires to re-argue the case on existing or additional evidence.23 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.24 An application for leave to appeal is not, and should not be an attempt to reargue a party’s case at the initial hearing.25 [19] 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 its decision, or was influenced by irrelevant matters. The evidence was capable of supporting the Tribunal’s conclusions. [20] 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 should be refused. 19 Selvanayagam v University of the West Indies [1983] 1 All ER 824, 826. 20 Slater v Wilkes [2012] QCATA 12, [6]. 21 Transcript, page 1-3, Lines 1 to 6. 22 British Westinghouse Electric Co. Ltd v Underground Electric Rys. [1912] AC 673, 691. 23 Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152, [12] (Wilson J). 24 Ibid. 25 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39. -- 6 of 7 -- 7 What is the appropriate Order? [21] The appropriate Order is: a) Leave to appeal refused. -- 7 of 7 --