Augusta Treverorum Pty Ltd v Marriot [2013] QCATA 202

CITATION: Augusta Treverorum Pty Ltd v Marriot [2013] QCATA 202 PARTIES: Augusta Treverorum Pty Ltd (Applicant/Appellant) V Wayne Bruce Marriot Tracy Lee Marriot (Respondents) APPLICATION NUMBER: APL111 -13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe OAM, Senior Member DELIVERED ON: 16 July 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 6 February 2013 is set aside. 4. Mr and Ms Marriot shall pay Augusta Treverorum Pty Ltd $2,372.14 by 6 August 2013. CATCHWORDS: MINOR CIVIL DISPUTE – where applicant did not attend hearing – 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 -- 1 of 4 -- 2 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. REASONS FOR DECISION [1] Mr and Ms Marriot rented a property from Augusta Treverorum Pty Ltd. Augusta filed a claim for rental arrears and compensation from Mr and Ms Marriot but no one from Augusta appeared at the hearing. The tribunal dismissed Augusta‟s claim. Augusta wants to appeal that decision. It says that it had no notice of the hearing. It also says that the learned Adjudicator erred in his decision. [2] 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 [3] Augusta has filed fresh evidence with its application for leave to appeal. The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined.5 Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Augusta 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 [4] Augusta has filed full page colour copies of photos showing the damage to its property whereas the learned Adjudicator only had small black and white copies. Colour copies must have been in existence for the initial hearing and Augusta has not explained why it did not produce them. However, the transcript shows that Mr and Ms Marriot conceded the truth of much of what is shown in these photos. The evidence will not have an important bearing on the case and need not be admitted. 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 Sections 137 and 138 QCAT Act. 6 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408. -- 2 of 4 -- 3 [5] At the hearing, Mr and Ms Marriot denied any knowledge of Augusta or its agent, Ink Property Group.7 They said that they only dealt with LJ Hooker.8 They said that no one contacted them about the issues in the claim.9 Augusta has filed evidence that shows these statements are not correct. This evidence might have been given by Augusta‟s representative, had there been an appearance, but it was not foreshadowed on the filed material. The evidence goes to the credit of Mr and Ms Marriot. They had an opportunity to file material in response. I will allow that fresh evidence. [6] The appeals tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.10 An appellate tribunal may interfere if the conclusion is „contrary to compelling inferences‟ in the case.11 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.12 [7] Mr and Ms Marriot conceded that they owed Augusta money for new remote controls.13 They conceded that they left boxes in the garage14 and the learned Adjudicator had photos that showed boxes left in the garage. Ms Marriot conceded that she stripped some of the decking oil when using bleach to clean mould.15 Mr and Ms Marriot conceded that they did not repaint patched holes in the walls.16 The learned Adjudicator had compelling evidence that work was necessary yet he declined to make an order. [8] I am satisfied that the learned Adjudicator misdirected himself in finding that Augusta‟s claim of $935 for cleaning was excessive. An examination of the invoice shows that Augusta paid $935 for a variety of matters, including carpet clean and pest control. Mr and Ms Marriot‟s emails clearly show that they did not attend to these matters before they left the premises. The emails also show that Mr and Ms Marriot were behind on their rent. [9] I am satisfied that the learned Adjudicator‟s conclusion was contrary to compelling inferences contained within the material before him. The tribunal could not dismiss an application simply because Augusta failed to attend the hearing. The tribunal must consider the evidence before it and make a decision based upon that evidence. Leave to appeal should be 7 Transcript page 1-2, lines 41-44. 8 Transcript page 1-4, line 14. 9 Transcript page 1-4, lines 34-40. 10 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. 11 Chambers v Jobling (1986) 7 NSWLR 1 at 10. 12 Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ. 13 Transcript page 1-4, lines 21-22. 14 Transcript page 1-6, line 31-32. 15 Transcript page 1-6, line 39-45. 16 Transcript page 1-7, lines 9-14. -- 3 of 4 -- 4 granted and the appeal allowed. The decision of 6 February 2013 is set aside. Instead, I am satisfied that Augusta has established its claim. I order that Mr and Ms Marriot pay Augusta $2,372.14 by 6 August 2013. -- 4 of 4 --