Cash v Yurko [2011] QCATA 319

CITATION: Cash v Yurko [2011] QCATA 319 PARTIES: Anne-Marie Cash (Applicant/Appellant) v Rachel Yurko (Respondent) APPLICATION NUMBER: APL335-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President DELIVERED ON: 24 November 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. Application by Ms Cash for leave to appeal is refused. 2. Application by Ms Cash for leave to present further evidence is refused (in this application for leave). 3. Application by Ms Yurko for consolidation of this application for leave to appeal and Maroochydore MCD matter MCD0224-11 is refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RENTAL TENANCY – Where the applicant rented premises from the respondent – Where a magistrate ordered that the tenancy agreement be terminated as, and on 31 August 2011 – Where magistrate directed the applicant to be responsible for rent until that date – Where the applicant seeks leave to appeal the Magistrate’s decision – Where the applicant applies to adduce further evidence – Where the respondent applies to consolidate proceedings – Whether grounds for leave to appeal – Whether grounds to adduce new evidence – Whether grounds to consolidate proceedings -- 1 of 3 -- 2 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 Cash rented premises from Ms Yurko at 1/19 Tombarra Street, Mooloolaba. Ms Yurko commenced proceedings in QCAT’s Minor Civil Disputes jurisdiction and, on 10 August 2011, a Magistrate sitting as a QCAT Member in that jurisdiction made an order terminating the tenancy as and from 31 August 2011; directing that Ms Cash was responsible for the rent until that date; and, giving Ms Yurko leave to bring a further claim for compensation after a final inspection. [2] Ms Cash has sought leave to appeal the learned Magistrate’s decision. On 29 September 2011 the QCAT Deputy President directed that the application for leave to appeal (and the appeal, if leave is granted) would be determined on the papers and that the parties exchange written submissions according to a timetable. [3] Thereafter, however, the matter has become complicated by further applications, and cross-applications. On 19 October Ms Yurko filed an application to consolidate this application for leave to appeal and another, separate, proceeding she has brought in QCAT’s Minor Civil Disputes jurisdiction (Maroochydore MCD 0224-11). Ms Cash has filed an application to extend time for her submissions in the application for leave to appeal, and a separate application for permission to present fresh evidence. [4] On 24 October the learned Deputy President directed that Ms Yurko’s application for consolidation would be determined on the papers, with each party making further submissions; and, on 27 October gave Ms Cash extra time to file her submissions. Application by Ms Yurko to consolidate proceedings [5] Doing the best I can with what is, now, several centimetres of material from the parties it appears the new Maroochydore MCD matter arises from another dispute between Ms Yurko and Ms Cash about entitlement to the bond monies. While that dispute relates to the original tenancy, it plainly falls within the Tribunal’s Minor Civil Disputes jurisdiction, and should be determined by a Member. Until it is resolved, it cannot properly be the subject of attention from the Appeal Tribunal, constituted for Ms Cash’s application for leave to appeal. The application to consolidate the proceedings must be refused. Application by Ms Cash for leave to appeal [6] Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a -- 2 of 3 -- 3 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 her submissions Ms Cash claims that, because of faulty telecommunication, she was unable to properly hear the learned Magistrate and, by inference, could not properly communicate with him or he with her at the time her matter was determined. That assertion is not, with respect, borne out by the recording of the hearing and I am not persuaded that Ms Cash did not hear or understand what the learned Magistrate said to her, or she to him. [8] Otherwise, her complaint is that the learned Magistrate disregarded her evidence including, in particular, medical certificates and character references. Again, with respect, the recording of the proceedings does not support that contention: the Magistrate was referred to the material upon which Ms Cash sought to rely. There was evidence before the learned Magistrate which entitled him to reach the conclusion, and make the orders, that he did. There is no reasonably arguable case of error in the primary decision, nor any sign of any substantial injustice to the applicant. Application by Ms Cash to adduce further evidence [9] As I understand her additional application, Ms Cash now wishes to adduce evidence relating to the forthcoming hearing of the dispute about the bond. For the reasons set out above, that MCD application should not be consolidated and heard and determined together with Ms Cash’s application for leave to appeal, and she will have the opportunity to present that evidence to the learned Magistrate at the hearing of that MCD application. Conclusion [10] Ms Cash has not established grounds for leave to appeal. Her proposed further evidence would not affect that conclusion and is, rather, relevant to another MCD dispute between the parties which is yet to be heard and determined. [11] The application for leave to appeal is refused. MCD0224-11 will proceed to a determination in its normal course. -- 3 of 3 --