Butler v Mackie [2013] QCATA 53

CITATION: Butler v Mackie [2013] QCATA 53 PARTIES: Mr William Campbell Butler (Applicant/Appellant) V Mr Robert James Mackie (Respondent) APPLICATION NUMBER: APL296 -12 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe, Senior Member DELIVERED ON: 25 February 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. Appeal allowed 3. The order of 23 August 2012 is set aside. 4. The application MCD083-12 filed by Mr Robert James Mackie on 10 May 2012 is dismissed. CATCHWORDS: MINOR CIVIL DISPUTE – where claim for unpaid rent and for work done – where claim for rent allowed - where no application for dispute resolution request – whether grounds for leave to appeal Residential Tenancies and Rooming Accommodation Act 2008 s416 Big4 Brisbane Northside Caravan Village v Schliebs [2012] QCAT 277 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 3 -- 2 REASONS FOR DECISION [1] Mr Butler lived with Mr Mackie on Lamb Island. Mr Mackie says that Mr Butler was supposed to pay rent although the terms of that agreement are not clear. Mr Mackie also says that he worked on Mr Butler’s cars, for which he was not paid. Mr Mackie applied to the tribunal for orders that Mr Butler pay him $5,195 on account of rent and repair costs. The tribunal ordered Mr Butler to pay Mr Mackie $3,800 on account of rent only. [2] Mr Butler wants to appeal that decision. He says Mr Mackie fabricated evidence and gave the tribunal evidence that he had not seen before. Mr Butler says he was not able to defend himself at the hearing because he was overwhelmed and very upset. Mr Butler has now provided statements that support his version of events. [3] Because this is an appeal from a minor civil dispute, Mr Butler 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 Butler shows a reasonably arguable case of error and a reasonable prospect that he will obtain substantive relief if the error is corrected. [4] The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined1. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could the party, with reasonable diligence, have obtained the evidence for use at the trial? Will the evidence, if allowed, probably have an important impact on the result of the case? Is the evidence credible? [5] Mr Mackie relied on a statement from his son and a rent book to prove his case. Neither of those documents formed part of the material filed and served, so Mr Butler had no opportunity to give any evidence about them. However, Mr Butler knew that the dispute was about rent. With some effort, he could have obtained the statements he now wants to rely on before the hearing. The statements do not have an important impact on the result of the case and I do not rely on them in making this decision. [6] The bulk of Mr Mackie’s claim is for unpaid rent. A party can only bring a claim for breach of a tenancy agreement if the party has first made a dispute resolution request to the Residential Tenancies Authority2. [7] The Residential Tenancies and Rooming Accommodation Act 2008 “is intended to be prescriptive and all-embracing in governing the procedure for determination of disputes arising under residential tenancies”3. The Act 1 QCAT Act ss 137 and 138 2 Residential Tenancies and Rooming Accommodation Act 2008 s416 3 Justice Wilson SC Big4 Brisbane Northside Caravan Village v Schliebs [2012] QCAT 277 at [42] -- 2 of 3 -- 3 has a wide definition of “residential tenancy agreement”4 and “rooming accommodation agreement”5. The agreement does not have to be in writing; it is the fact of occupation that is important. [8] The evidence suggests that Mr Mackie provided Mr Butler with rooming accommodation. Therefore, the RTRA Act applies. The failure to pay rent is a breach of the agreement. There is no evidence that Mr Mackie referred the dispute to conciliation. Because there is no dispute resolution request, Mr Mackie cannot apply to the tribunal for compensation for non-payment of rent. Therefore, the tribunal could not consider Mr Mackie’s claim for rent and the claim should have been dismissed. [9] I grant leave to appeal and allow the appeal. The order of the tribunal dated 23 August 2012 is set aside and Mr Mackie’s application is dismissed. 4 RTRA Act s12 5 RTRA Act s16 -- 3 of 3 --