Breen v Napoli [2013] QCATA 119

CITATION: Breen v Napoli [2013] QCATA 119 PARTIES: Mr James Breen (Applicant/Appellant) v Ms Jacqueline Napoli (Respondent) APPLICATION NUMBER: APL076-13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe, Senior Member DELIVERED ON: 30 April 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): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). -- 1 of 3 -- 2 REASONS FOR DECISION [1] Mr Breen owns a property in which Ms Napoli was a tenant. At the end of the tenancy, his agent filed a claim for the cost repainting door frames, replacing the back door and replacing a shower base. The Tribunal ordered Ms Napoli pay for the repainting and the door but not the shower base. [2] Mr Breen wants to appeal that decision. He says that he was told he could not attend the hearing. He says that a conversation Ms Napoli says she had with him did not occur. He says that his agent should have argued that the standard practice for problems was for Ms Napoli to speak to the agent, not to him. He says that Ms Napoli‟s version of the damage to the shower base cannot be true. [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] The Appeals 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 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.7 [5] Properly, Mr Breen does not say that the Tribunal told him he could not attend the hearing. His criticisms of the hearing are really directed at the way that his agent conducted the hearing. He does not point to an error by the learned Adjudicator; he simply says that Ms Napoli‟s evidence was incorrect. 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 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 Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ. -- 2 of 3 -- 3 [6] The learned Adjudicator noted that Mr Breen‟s agent admitted she did not look closely at the damage and she was not aware of Ms Napoli‟s explanation. The learned Adjudicator found, on the balance of probabilities, that Ms Napoli‟s version of events was likely to be correct. The learned Adjudicator was entitled to make those findings and there is nothing in the transcript that persuades me the learned Adjudicator should have taken a different view. [7] Mr Breen may still have rights of recovery, but not against Ms Napoli. 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. -- 3 of 3 --