Daher v Danilo Spagnuolo t/as LDS Vision Pty Ltd [2015] QCATA 168

CITATION: Daher v Danilo Spagnuolo t/as LDS Vision Pty Ltd [2015] QCATA 168 PARTIES: Houda Daher (Applicant/Appellant) v Danilo Spagnuolo t/as LDS Vision Pty Ltd (Respondent) APPLICATION NUMBER: APL343 -15 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM DELIVERED ON: 1 December 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – RESIDENTIAL TENANCIES – where tenant terminated early – where application for compensation - 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] Houda Daher rented an apartment in Q1 through Danilo Spagnuolo. The term of her tenancy was from 18 February 2015 to 15 September 2015. Ms -- 1 of 4 -- 2 Daher moved out on 17 March 2015, after issuing a Form 13 on 12 March 2015. [2] Mr Spagnuolo filed a claim for compensation for rent lost through early termination. The tribunal ordered Ms Daher pay Mr Spagnuolo $3,949.28. [3] Ms Daher wants 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 [4] Ms Daher submits that the tribunal’s reasons for decision she received on 14 August 2015 contradict the reasons the tribunal gave on 20 May 2015. She submits that the tribunal’s reasons are unfair and biased. She submits the tribunal made its decision based on Mr Spagnuolo’s lies. She submits the tribunal ignored important evidence, such as Dr Jeffrey’s medical certificate. She says the tribunal ignored the fact that her health had suffered. She says the tribunal decided Mr Spagnuolo was a victim, the learned Adjudicator called the case a scam before hearing evidence, and that he intended closing the hearing within minutes. [5] I’ve looked at the evidence and read the transcript of the hearing on 20 May 2015. There is no evidence that the tribunal hearing was unfair or biased. There is no evidence that the learned Adjudicator rushed through the hearing. There is no evidence that the learned Adjudicator called the case a scam. [6] The hearing commenced at 11.13 am. Even though it was Mr Spagnuolo’s application, the learned Adjudicator heard from Ms Daher first3. When the learned Adjudicator realised that Ms Daher had filed but not served material, he adjourned the hearing so that Ms Daher could serve Mr Spagnuolo by email4. The learned Adjudicator adjourned the hearing at 11.37 am and resumed at 11.58. That is not the action of a person who intended closing the hearing within minutes. [7] In addition, the learned Adjudicator did not decide the case on 20 May 2015. Because both Ms Daher and Mr Spagnuolo did not have important documents before the tribunal, the learned Adjudicator adjourned the hearing, and gave each party time to file further evidence and submissions. That is not consistent with Ms Daher’s submission that the learned Adjudicator wanted to close the hearing within minutes. [8] The learned Adjudicator did not refer to the case being a scam. Ms Daher, herself, asked the learned Adjudicator if he thought it was a scheme5. The 1 QCAT Act s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 at [3]. 3 Transcript page 1-4, line 7 4 Transcript page 1-11, lines 8 - 27 5 Transcript page 1-26, line 14 -- 2 of 4 -- 3 learned Adjudicator told Ms Daher he was looking for independent evidence about her complaints of a gas leak. That comment by the learned Adjudicator does not support a submission that the learned Adjudicator was calling the case a scam. [9] Ad I have already indicated, the learned Adjudicator did not decide the case on 20 May 015. Therefore, he did not give final reason for his decision. Any reason he gave were based on the evidence before him that day. If they differed from his final reasons, it was because the parties had provided additional evidence which influenced his decision. However, I have read the transcripts for both days and I do not find any inconsistency in the reasons for decision. [10] The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions. An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.6 [11] The learned Adjudicator found that Ms Daher had not terminated the tenancy agreement for a valid reason. He found that her complaints about the condition of the tenancy were minor complaints. He found that Ms Daher did not issue a Form 11 about those minor matters. He found that the minor issues did not give Ms Daher a right to terminate the tenancy agreement. The evidence can support those findings and I can find no compelling reason to come to a contrary view. [12] The learned Adjudicator also accepted Mr Spagnuolo’s evidence that he attempted to mitigate the loss from Ms Daher’s early termination by re- listing the tenancy within days of her giving notice to leave. Ms Daher disputes that evidence but Mr Spagnuolo swore to it and the learned Adjudicator was entitled to accept it. There is nothing in the transcript to persuade me that the learned Adjudicator should have taken a different view of the facts. [13] The learned Adjudicator could not locate Dr Jeffrey’s report during the hearing.7 He gave Ms Daher the opportunity to file a copy of the report during the adjournment. Although there is an email from Ms Daher which refers to the report, the report is not on file. It is, therefore, understandable that the tribunal did not take the report into account when making a decision. [14] The tribunal did not ignore the fact that Ms Daher’s health suffered. The learned Adjudicator acknowledged her difficulties but was unable to find that her health difficulties related to the condition of the tenancy8. That finding was open on the evidence and I can find no compelling reason to come to a different view. 6 Chambers v Jobling (1986) 7 NSWLR 1 at 10. 7 Transcript page 1-12. 8 Transcript page 2-3, lines 16 – 23. -- 3 of 4 -- 4 [15] There is no reasonably arguable case that the learned Adjudicator was in error. Leave to appeal should be refused. -- 4 of 4 --