Allen v Pearce [2015] QCATA 181

CITATION: Allen v Pearce [2015] QCATA 181 PARTIES: Jim Francis Allen Doris Clare Allen (Applicants/Appellants) v Christopher Pearce (Respondent) APPLICATION NUMBER: APL309 -15 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM DELIVERED ON: 15 December 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused CATCHWORDS: APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where tenancy ended early – where tenants claimed return of bond – where tenants claimed refund of rent overpaid – where lessors not present at hearing - whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Pickering v McArthur [2005] QCA 294 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Chambers v Jobling (1986) 7 NSWLR 1 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION -- 1 of 3 -- 2 [1] Jim and Doris Allen own a property which, at some time in the future, will be redeveloped. Pending redevelopment, they offered the property for rent through Marsellos Pike Real Estate. Casey and Christopher Pearce signed a six month tenancy agreement on 23 January 2015. They left the tenancy on 23 March 2015, on the ground that the tenancy was dirty and infested with parasites. They applied to the tribunal for the return of their bond plus the refund of rent overpaid. The tribunal ordered the bond be returned to Mr and Ms Pearce and ordered Mr and Ms Allen pay the tenants $1028.55. [2] Mr and Ms Allen want to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.1 Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.2 [3] Mr and Ms Allen say that they could not attend the hearing because Ms Allen was in hospital undergoing treatment for cancer. They say they have new evidence that contradicts Ms Pearce’s evidence at the hearing. They say that the information provided at the hearing about an overpayment of rent was false. [1] Mr and Ms Allen filed fresh evidence with their application for leave to appeal. They filed a letter from Ms McClintock, the property agent from Marsellos Pike, advising that Mr and Ms Pearce overpaid rent in the sum of $428.57, not $1028.55 and annexing a copy of the tenant ledger plus a copy of the bond receipt. Mr and Ms Allen also filed a copy of a letter from Ms McClintock dated 22 May 2015 stating that the tenancy was clean when Mr and Ms Pearce took possession. [2] The appeals 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 such evidence must satisfy three tests. 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?3 [3] An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party’s case at the initial hearing. [4] The letter of 22 May 2015 was before the tribunal. It is not fresh evidence and I do not have to consider it further. [5] Mr and Ms Pearce’s material included a page from the tenant status report showing “Total overpaid $1028.55 CR”. They included an email from Ms 1 QCAT Act, s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 at [3]. 3 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408. -- 2 of 3 -- 3 McClintock dated 2 March 2015 stating “All details relating to the overpaid rent and bond dispute is now in their (the owners’) hands”. [6] Mr and Ms Allen should therefore have known that this would be an issue for the hearing. They have provided no explanation as to why the fresh material was not available earlier. I accept that Mrs Allen was in hospital, but they had passed the management of their property to their daughter, who appeared at the hearing. Mr and Mrs Allen have not bothered to obtain a sworn statement from Ms McClintock, so I cannot be satisfied that the fresh evidence is credible. The fresh evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the tribunal. [7] I accept that Ms Allen was unable to attend the hearing due to her medical condition and that Mr Allen was supporting her through that event. However, that is not a ground for leave to appeal when, as the transcript shows4, they had delegated management of the property and the proceeding to their daughter Ms Matthews. If they were not satisfied with the result of the proceedings, it was not through any fault of the tribunal. [8] The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.5 An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.6 [9] The learned Adjudicator had two competing versions of events. He preferred the evidence of Ms Pearce over the evidence of Ms Matthews. He explained why he preferred Ms Pearce: her evidence was consistent7; it was supported by the documentary evidence8; and she had sworn statements from corroborating witnesses. The evidence can support the tribunal’s findings and I can find no reason to take a different view of the facts. [10] There is no reasonably arguable case that the learned Adjudicator was in error. Leave to appeal should be refused. 4 Transcript page 1-2, line 39 to page 1-3, line 5 5 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. 6 Chambers v Jobling (1986) 7 NSWLR 1 at 10. 7 Transcript page 1-45, lines 2 – 5. 8 Transcript page 1-44, lines 21 – 28. -- 3 of 3 --