Eastment v Evans [2014] QCATA 282

CITATION: Eastment v Evans [2014] QCATA 282 PARTIES: Karen Eastment (Appellant) v Tim Evans Jenny Evans (Respondents) APPLICATION NUMBER: APL275-14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Acting Senior Member Paratz DELIVERED ON: 26 September 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – whether grounds for leave to appeal – where a cheque butt was put forward as proof of payment of rent without any clear explanation as to the purpose of the payment 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] Ms Eastman rented a house in Townsville from Mr and Mrs Evans. She was a tenant for about 6 years, and then moved out of the premises. [2] Ms Eastment filed an Application for minor civil dispute – residential tenancy dispute on 28 November 2013 seeking compensation in relation to the swimming pool maintenance of $17,444.00, and orders as to removal of her name from the TICA database, and non-contact orders as to her sons. -- 1 of 4 -- 2 [3] There were several steps taken in the matter, leading to a hearing on 3 January 2014 in Brisbane. The hearing was to be finalised on the papers, but was brought on for further oral hearing in Brisbane on 20 March 2014 when the matter was concluded, and an order was made that Ms Eastment pay $478 to the Evans. [4] Ms Eastment filed an Application for leave to appeal or appeal on 24 June 2014. Her grounds of appeal are as follows: The decision made by Mr Howe on the 20th of March is incorrect. He has used incorrect financial information provided by Mr and Mrs Evans regarding rent paid on the 1st of June 2007. His decision to use this information instead of accepting my cheque butt as a receipt of payment has resulted in his decision to order that I pay Mr and Mrs Evans $478.00 instead of Mr and Mrs Evans paying me $182.00. I then applied for a re- opening as I was advised to do by counter staff at QCAT shortly following the hearing when I approached the Bank of Queensland and provided a copy of my bank statement where it is clear Mrs Evans has cashed the cheque for $660.00 on the 25th of June 2007. I have on the 20th of June 2014 received a decision by Mr Howe to refuse my application for a re- opening. The incorrect decision is influencing another application to remove me off TICA. [5] Both parties filed submissions in relation to the Application for leave to appeal or appeal. [6] Ms Eastment filed submissions on 15 July 2014. She submitted that the adjudicator had made errors of fact by adopting the spreadsheet prepared for Mr and Mrs Evans. She also submits that an error was made in applying the “six month rule” under the Residential Tenancies and Rooming Accommodation Act 2008. [7] Mr and Mrs Evans filed submissions on 28 August 2014. They submit that Ms Eastment left the property owing them $11,850.00 in rent. They submit that there was no evidence presented to support the claim for swimming pool maintenance. [8] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. Leave to appeal will usually only 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.1 [9] 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. [10] The Tribunal considered the question of the cheque butt put forward by Ms Eastment as proof of payment of rent (Transcript p 1-7, line 3): 1 Pickering v McArthur [2005] QCA 294 at [3]. -- 2 of 4 -- 3 Adjudicator Howe: I just want that first payment, please, unless there is another payment or another document which shows that during the currency of the tenancy, rent became payable in advance, and it can’t be your payment. It would have to be a receipt acknowledging that from the lessors that it was payable two weeks in advance. Ms Eastment: Well, there’s my cheque butt on the 1st of June, Adjudicator Howe: No. I said it would have to be something from the lessors. You’ve got a cheque butt showing what? Ms Eastment: that I paid rent to them out of the Bank of Queensland. Adjudicator Howe: But what does that say? It doesn’t say whether it’s in advance or in arrears. It’s the issue of whether you’re paying for the next two weeks, or you’ve been there for two weeks, and it covers the last two weeks. That’s what the issue comes down to for the last two weeks of payment. Do you not understand? [11] The learned adjudicator is clearly open to not accept the cheque butt as proof of payment, as he points out. The cheque butt is self-serving evidence provided by the maker, and may have limited weight in any event. [12] The Tribunal has made findings of fact based on the evidence before it. I have read the transcripts of the hearings on both 3 January 2014 and 20 March 2014. There is nothing in the transcripts that persuades me that the learned Adjudicator should have taken a different view of the facts. [13] Ms Eastman seems to be wishing to adduce further evidence. 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. Ms Eastman has provided no explanation as to why this material was not available earlier. That evidence should not be admitted, and the application for leave to appeal must proceed on the basis of the evidence before the Adjudicator. [14] 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 Ms Eastman 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? [15] None of these tests are made out by cogent submissions, and fresh evidence will not be accepted on this application. [16] No error of law in relation to the reference by the learned Adjudicator to the Residential Tenancies and Rooming Accommodation Act 2008 has been identified. [17] There is no reasonably arguable case that the decision was in error, or that a substantial injustice has been caused to Ms Eastman by any error. -- 3 of 4 -- 4 [18] Leave to Appeal should be, and is refused. -- 4 of 4 --