Edwards v Bartholomeusz Kirwan Real Estate [2013] QCATA 279

CITATION: Edwards v Bartholomeusz Kirwan Real Estate for Douglas & Desley Hargreaves [2013] QCATA 279 PARTIES: Ms Sherylene Edwards (Appellant) v Bartholomeusz Kirwan Real Estate for Douglas & Desley Hargreaves (Respondent) APPLICATION NUMBER: APL321 -13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe, Senior Member DELIVERED ON: 8 October 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: MINOR CIVIL DISPUTE – whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Cachia v Grech [2009] NSWCA 232 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 APPEARANCES and REPRESENTATION (if any): The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009. -- 1 of 4 -- 2 REASONS FOR DECISION [1] Ms Edwards lives in a unit managed by Bartholomeusz Kirwan Real Estate. In the early hours of 30 October 2012, Ms Edwards‟ son used a fire hose to wash the stairwell adjacent to Ms Edwards‟ unit. Bartholomeusz was advised that water from the fire hose damaged two fire doors in the stairwell. It filed a claim for the cost of replacing those fire doors. An adjudicator ordered Ms Edwards pay Bartholomeusz the $3,288. [2] Ms Edwards wants to appeal that decision. In her submissions in support of the application, Ms Edwards refers primarily to discrepancies in the evidence and her inability to appear at the hearing on 3 June 2013. She also says that the Form 11 was invalid because it does not detail her alleged breach. [3] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?1 Is there a reasonable prospect that the applicant will obtain substantive relief?2 Is leave necessary to correct a substantial injustice caused by some error?3 Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?4 [4] Ms Edwards has filed new material with her application for leave to appeal. Relevantly, she filed an audio of a conversation she had with Ms Bartholomeusz in November 2012 and a report from Fireboar, a company that specialises in passive fire protection. [5] The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined5. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Ms Edwards 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?6 [6] This dispute was first listed for hearing on 15 March 2013. Ms Edwards applied for an adjournment on the grounds of ill-health but the application did not come to the tribunal‟s attention in time to make that order. The tribunal made a decision on 15 March 2013. It then gave Ms Edwards leave to reopen the proceeding. 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 2 Cachia v Grech [2009] NSWCA 232 at 2. 3 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 4 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580. 5 QCAT Act ss 137, 138. 6 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408 . -- 2 of 4 -- 3 [7] The matter was listed for hearing on 3 June 2013. Ms Edwards filed material in response on 31 May 2013. Some of the photos, and much of Ms Edwards‟s arguments, are contained in that material. [8] Ms Edwards did not attend the second hearing either. In her material of 31 May 2013, she advised the tribunal that she would not attend and asked the tribunal to make a finding based on the evidence she submitted. The tribunal did so, finding that she was liable for the doors. [9] 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 Edwards had two opportunities to file material. Because of the tribunal‟s decision of 15 March 2013, she knew that the tribunal might find against her unless she provided evidence to dispute Bartholomeusz‟ claim. The audio was available prior to the hearing and Ms Edwards has not explained why she did not submit it earlier. Ms Edwards knew that the state of the doors was an important issue for the hearing. She has not explained why she did not obtain an expert‟s report prior to the hearing. That evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Adjudicator. [10] The Form 11 filed in the original proceedings referred to attached material. The copy on the tribunal file contains: extracts of the essential terms; an estimate of the cost of replacement; the body corporate‟s notice to the lessee; and copies of the by-laws. This material explains the breach in very clear terms. I do not accept that the Form 11 was invalid. [11] The appeals tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.7 An appellate tribunal may interfere if the conclusion is „contrary to compelling inferences‟ in the case.8 As the High Court said in Fox v Percy: In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.9 [12] The learned Adjudicator had a quote from an independent party that the fire doors needed replacement. He had uncontested evidence that Ms Edwards‟ son used the fire hose to wash the stairwell. Ms Edwards complains that the learned Adjudicator did not obtain written confirmation of the evidence submitted orally at the hearing. That submission shows that Ms Edwards misunderstands the nature of the tribunal proceedings. The learned Adjudicator took oral evidence at the hearing. He was entitled to rely on that evidence. He did not need written evidence to confirm what he was told. 7 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. 8 Chambers v Jobling (1986) 7 NSWLR 1 at 10. 9 Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ. -- 3 of 4 -- 4 [13] Ms Edwards provided alternative explanations for why the fire doors might need replacing. There is nothing in the transcript to indicate that the learned Adjudicator considered Ms Edwards‟ submissions but much of it is speculation, rather than evidence. The learned Adjudicator had to decide between two competing versions of events. He preferred the evidence of Ms Bartholomeusz. There is nothing in the transcript to persuade me that the learned Adjudicator should have taken a different view of the facts. [14] There is no question of general importance that should be determined by the appeals tribunal. There is no reasonably arguable case that the learned Adjudicator 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. -- 4 of 4 --