Akacich v Parekh [2012] QCATA 63

CITATION: Akacich v Parekh [2012] QCATA 63 PARTIES: Marie Akacich (Applicant/Appellant) v Dr Harendra Parekh t/as S&J Investments (Respondent) APPLICATION NUMBER: APL345-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member DELIVERED ON: 16 April 2012 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal refused. CATCHWORDS: Tenancy – where applicant seeks to disturb findings of fact – where facts open on the evidence Queensland Civil and Administrative Tribunal Act 2009, s 142(3) 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 Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] Ms Akacich rented commercial premises from the respondent at 11 Kurilpa Street, West End. She carried on a business there as Estate Clearance selling second hand goods and collectables. The respondent took possession of the premises on 21 March 201 after issuing a Notice to Leave. At the time of taking possession the premises still contained the applicant’s goods and chattels. -- 1 of 3 -- 2 [2] A dispute arose between the parties about outstanding rent resulting in an application for a minor civil dispute being filed in the Tribunal on 6 April 2011. After a number of interim applications, Ms Akacich was permitted to access the warehouse to remove her goods. The application finally came on for hearing before a Tribunal Member in September 2011. The respondent claimed $19,515.00 for outstanding rent, filing fee and service fee ($500). The service fee was disallowed for good reason which left the substantive claim for arrears of rent of $18,760.00 for determination. [3] After hearing from both parties, the learned Member concluded that Ms Akacich should pay the November rent of $3,100.00 which she admitted was not paid. He then went on to consider the balance of the claim and noted that use of the premises was interrupted as a result of the January floods but Ms Akacich had use of the premises during March and some use thereafter to remove all her goods. He made a finding that she should pay a total of two months rent of $3,100.00 per month plus the filing fee of $255.00. It was ordered that she pay that amount by 29 September 2011. [4] From that decision Ms Akacich has filed an application for leave to appeal or appeal. In that application she challenges the finding that she should pay two months rent and also the timeframe within which she had to pay. In respect of the timeframe, that is not a matter the Appeal Tribunal can now interfere with because that time has now well and truly passed but more importantly, it is an exercise of discretion and if she sought further time to pay, she should have applied for an extension of time to comply with the order. [5] The substantive issue in the appeal is whether or not the learned Member fell into error in ordering that Ms Akacich pay two months rent. As this is an appeal from a minor civil dispute proceeding, leave to appeal is necessary.1 [6] Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error? [7] In respect of the November rent there is no basis upon which the Appeal Tribunal would interfere with any order relating to that period because Ms Akacich acknowledged and accepted that the rent was payable. [8] With respect to the March rent, the learned Tribunal Member was entitled to make an assessment on the known facts as to whether rent should be paid for that month. On the facts before him, he came to the conclusion 1 QCAT Act, s 142(3). -- 2 of 3 -- 3 that it should and this Appeal Tribunal sees no reason why that finding of fact should be interfered with. [9] In a handwritten “submission” in support of the application for leave to appeal Ms Akacich, once again, does not seem to be challenging that the rent is payable, but what she is attempting to do is offset costs and losses in the disposal of some of her goods after the respondent took possession of the premises. In her written submissions she sets out a history of the circumstances surrounding her forced removal from the premises. Ms Akacich sets out in detail the goods that she says are missing, and presumably taken by the respondent as well as contentions that he received $600.00 for “scrap metal”. The scrap metal, Ms Akacich contends are antique goods and, if not antique, certainly collectables that have historical value as well as intrinsic value to Ms Akacich. [10] Her submissions are in the nature of her statement of evidence which reiterates all that occurred since problems began in late 2010. She records events involving her access to the warehouse, involvement with police, and the conduct of Dr Parekh. She seeks compensation for the destruction of her goods by him. [11] It is the function of the Appeal Tribunal to determine whether there is an error in the primary decision. It is not my task to decide where the truth lay as between the competing versions given by the parties.2 The majority of Ms Akacich’s submissions relate to matters that were put to the learned Member at the hearing. These facts are contested particularly in so far as it relates to the use of the premises in March 2011. The learned Member made specific findings with respect to these issues and those findings were open to him on the evidence presented by the parties. [12] By contrast, Dr Parekh, in his submissions, contends that the learned Member made an error in not awarding the compensation claimed. Once again the learned Member took these matters into account in determining that of the six months rent claimed, only two months should be paid. [13] The submissions from both parties have not been able to identify any error in the learned Member’s reasoning, nor is any error apparent. The Appeal Tribunal is not a place to re-litigate those very matters that were considered by the original Tribunal. Being dissatisfied with the original decision is not a sufficient basis for being granted leave to appeal. As no error has been identified, leave to appeal must be refused. 2 Fox v Percy [2003] 214 CLR 118 at 129. -- 3 of 3 --