Dumergue v Shores Realty [2013] QCATA 62

CITATION: Dumergue v Shores Realty [2013] QCATA 62 PARTIES: Mr James Charles Dumergue (Applicant/Appellant) v Shores Realty (Respondent) APPLICATION NUMBER: APL276-12 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe, Senior Member DELIVERED ON: 26 February 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: MINOR CIVIL DISPUTE – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009, ss 137, 138 Chambers v Jobling (1986) 7 NSWLR 1 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Dearman v Dearman (1908) 7 CLR 549; Fox v Percy (2003) 214 CLR 118 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). REASONS FOR DECISION [1] For a short time, Mr Dumergue was a tenant in a property managed by Shores Realty. At the end of the tenancy, Mr Dumergue applied to the Tribunal for the return of his bond. Shores Realty sought compensation for damage to the tenancy. From Shores Realty‟s claim of $3,520.53, the Tribunal ordered that Mr Dumergue pay $2,121.25 and that the RTA pay the bond to Shores Realty in part satisfaction. -- 1 of 3 -- 2 [2] Mr Dumergue wants to appeal that decision. He says that Shores Realty increased its claim at the hearing and he did not have enough time to consider each element of the claim. He says that the owner took the opportunity to improve the property and charge him for those improvements. [3] Because this is an appeal from a minor civil dispute, Mr Dumergue must seek leave to appeal. The Tribunal may grant leave if the dispute raises a question of general importance and the public would benefit from a decision on that question. It may also grant leave if Mr Dumergue shows a reasonably arguable case of error and a reasonable prospect that he will obtain substantive relief if the error is corrected. [4] The transcript supports Mr Dumergue‟s argument that Shores Realty presented material at the hearing that he had not seen before.1 But Mr Dumergue did not ask for an adjournment and the transcript also shows that the learned Adjudicator took the parties through each items and, in each case, Mr Dumergue told the learned Adjudicator why he should not allow the claim. In many cases, the learned Adjudicator did not accept that the owner was entitled to the full amount claimed and this is clear from the difference between the claim and the order. I find that Mr Dumergue did not suffer any disadvantage from the later delivery of material. [5] Mr Dumergue has filed documents to dispute the costs of some claims allowed by the learned Adjudicator. The Appeals Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined.2 Ordinarily, an application for leave to adduce such evidence must satisfy three tests. Could Mr Dumergue 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] Mr Dumergue admitted that most of the matters Shores Realty claimed were discussed at mediation.4 He knew that these matters would be discussed and, with some effort, he could have obtained the evidence before the hearing. For reasons which follow, the evidence does not have an important impact on the result of the case. I will not consider the new evidence when making my decision. [7] Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.5 1 Transcript page 4, lines 22-4. 2 ss 137-8, QCAT Act. 3 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408. 4 Transcript page 4 line 1. 5 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-6. -- 2 of 3 -- 3 [8] An appellate tribunal may interfere, however, if the conclusion at first instance 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 [9] Mr Dumergue complains about the cost of the repainting, saying it is excessive. He wants to argue the cost of paint. The learned Adjudicator already discounted the cost of materials when he deducted $100 from the owner‟s claim. The evidence can support the learned Adjudicator‟s decision and I can find no reason to take a different view. [10] Mr Dumergue‟s argument that the owner used the claim to improve the property has no merit. The learned Adjudicator did not give the owner the cost of upgrading the property. He discounted the claim for the microwave from $140 to $70.8 He also discounted the cost of the new cook top from $632 to $200.9 [11] The rest of Mr Dumergue‟s arguments are no different from his submissions to the learned Adjudicator. I have considered the transcript carefully. The evidence supports the learned Adjudicator‟s decision and there is no compelling reason to come to a different view. [12] 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; and there is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused. 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. 8 Transcript page 24, lines 7-8. 9 Transcript page 25, line 4. -- 3 of 3 --