Diffey v Ware [2014] QCATA 56

CITATION: Diffey v Ware [2014] QCATA 56 PARTIES: Marc Diffey (Appellant) v Stephen Ware (Respondent) APPLICATION NUMBER: APL531 -13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe, OAM DELIVERED ON: 31 March 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused CATCHWORDS: APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where solar panels – where agreement about electricity charges not in writing – where tenant paid extra rent because of solar panels – where air-conditioning not repaired until after summer season – where compensation ordered - whether grounds for leave to appeal Fox v Percy (2003) 214 CLR 118 Dearman v Dearman (1908) 7 CLR 549 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). -- 1 of 4 -- 2 REASONS FOR DECISION [1] Mr and Mrs Ware rented a house on Magnetic Island from Mr Diffey. They had problems from the start, so they terminated the tenancy shortly after they moved in and applied for compensation for electricity payments, water rates, poor plumbing and a non-working air conditioner. A Judicial Registrar, sitting as a member of the tribunal, ordered Mr Diffey pay Mr and Mrs Ware compensation for the electricity and non-working air conditioner. [2] Mr Diffey wants to appeal that decision. He says that the learned Judicial Registrar overlooked relevant facts in coming to her decision. He says that Mr and Mrs Ware signed a two year lease and broke the agreement after only seven months. He says they have paid nothing for electricity. He says Mr and Mrs Ware damaged the house and did not leave it clean. He says the air conditioner was working when they started the tenancy and any claim they might have should be against the agent. [3] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as His Honour then was) in Pickering v McArthur1: There are numerous authorities, in varying language but with unvarying emphasis, that 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. [4] Mr Diffey’s application for leave to appeal is, in truth, an application for compensation due to actions by Mr and Mrs Ware. Mr Diffey has filed fresh material with his application for leave to appeal to support his submissions. [5] The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined2. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Mr Diffey 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 [6] 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. [7] The dispute first came before the learned Judicial Registrar on 10 October 2013. She added Mr Diffey as a party and adjourned the hearing to give him the opportunity to appear and make submissions. On 31 October 1 [2005] QCA 294 at [3]. 2 QCAT Act ss 137, 138. 3 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408. -- 2 of 4 -- 3 2013 Ms Burgess, a real estate agent, appeared on Mr Diffey’s behalf. She did not make any submissions on Mr Diffey’s behalf4. The learned Judicial Registrar specifically adjourned the hearing so that Mr Diffey could present evidence but he failed to take that opportunity. [8] None of the matters Mr Diffey now raises was raised before the learned Judicial Registrar, either on 10 October 2013 or 31 October 2013. His explanation as to why this material was not available earlier is that he was in Sydney and received very short notice of the hearing. That is not a sufficient explanation. The claim was filed in July 2013. Mr Diffey had plenty of time to submit material. That evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Judicial Registrar. [9] 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 [10] Mr Diffey’s agent at the first hearing conceded that Mr Diffey probably owed Mr and Mrs Ware $700 for electricity pre-payments7. Ms Ware told the tribunal that the house had solar panels and they were only going to pay for the “difference”. They also told the tribunal that their rent was higher to cover the electricity generated from the panels8. The agent’s only response to that submission was that it is a very odd set up and something should have been constructed in writing at the start of the tenancy9. The learned Judicial Registrar had uncontested sworn evidence about the electricity charges. She was entitled to rely on it. I can find no reason to come to a different view. [11] Mr Diffey says that he did take reasonable steps to restore air-conditioning to the house. The learned Judicial Registrar accepted that fact but qualified her finding by stating that Mr Diffey only took action when he received a formal notice to remedy breach10. The learned Judicial Registrar found that Mr Diffey was aware of the problem from the start of the tenancy in November but took no action until March11. The learned Judicial Registrar had sworn evidence to that effect from Ms Ware12. Mr Diffey’s agent agreed with Ms Ware’s version of events13. She told the tribunal that Mr Diffey refused to repair the air-conditioning until he received a notice to remedy breach. The evidence can support the learned 4 Transcript 31 October 2013, page 1-3, lines 24-31. 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 10 October 2013, page 1-9, lines 4-5. 8 Transcript 10 October 2013, page 1-7, lines 30-34. 9 Transcript 10 October 2013, page 1-8, lines 39-40. 10 Transcript 31 October 2013, page 1-5, lines 45-46. 11 Transcript 31 October 2013, page 1-5, line 47 to page 1-46, line 4. 12 Transcript 10 October 2013, page 1-15, line 29 to page 1-16, line 47. 13 Transcript 10 October 2013, page 1-18 lines 5-34. -- 3 of 4 -- 4 Judicial Registrar’s findings and there is nothing in the transcript to persuade me that she should have taken a different view of the facts. [12] The transcript shows that, at all times, the agent was acting only as Mr Diffey’s agent and not on a frolic of its own. Even so, if Mr Diffey has a problem with the way the agent handled the tenancy, his action lies against the agent and he cannot offset that claim against Mr and Mrs Ware. [13] There is no reasonably arguable case that the learned Judicial Registrar was in error. Leave to appeal should be refused. -- 4 of 4 --