Finlay & Anor v ASM (Australia) Pty Ltd [2011] QCATA 273

CITATION: Finlay and Anor v ASM (Australia) Pty Ltd [2011] QCATA 273 PARTIES: Mr Brian Finlay Mr Winson Woo v ASM (Australia) Pty Ltd APPLICATION NUMBER: APL270-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe, Acting Senior Member DELIVERED ON: 26 September 2011 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal refused. CATCHWORDS: MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where tenant alleged agreement to rent/buy – where contract not produced at the hearing – whether fresh evidence should be allowed – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009, ss 137, 138 Residential Tenancies and Rooming Accommodation Act 2008, s 12 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 Chambers v Jobling (1986) 7 NSWLR 1 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009. -- 1 of 4 -- 2 REASONS FOR DECISION [1] Messrs Finlay and Woo have been residing in a unit at Labrador since 2008. The unit is owned by ASM (Australia) Pty Ltd. By application to the tribunal in its minor civil disputes jurisdiction, ASM sought an order terminating the tenancy. Messrs Finlay and Woo opposed the application on the grounds that they were not tenants but purchasers under a rent/buy contract. The learned Adjudicator found that Messrs Finlay and Woo were, in fact, tenants; issued a termination order; ordered that they pay ASM $5,095; and the bond of $2,000 be released to ASM in part satisfaction of the $5,095. [2] Messrs Finlay and Woo have appealed the learned Adjudicator‟s decision on these grounds: a) The tribunal prevented them from producing a written contract of sale in support of their claim. b) There was no written tenancy agreement. c) Their payments to ASM were payments under an instalment contract for the purchase of the unit. d) The bond was, in fact, a deposit on the purchase of the property. [3] Because this is an appeal from a decision of the tribunal in its minor civil dispute jurisdiction, leave is necessary. 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? [4] Both parties have filed extra material in this application that was not available to the learned Adjudicator when she made her decision. The appeal 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 each of the following tests: a) The evidence could not have been obtained with reasonable diligence for use at the trial; b) The evidence, if allowed, would probably have an important impact on the result of the case (although it need not be demonstrated that it would be decisive); and 1 Sections 137 and 138 QCAT Act. -- 2 of 4 -- 3 c) That the evidence is credible though it need not be incontrovertible.2 [5] An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party‟s case at the initial hearing. Messrs Finlay and Woo have provided no explanation as to why this material was not available earlier. The transcript shows that Messrs Finlay and Woo raised the issue of the contract of sale at the hearing but they did not bring a copy with them to the hearing.3 When the learned Adjudicator asked why the contract was not available, Mr Finlay asked for the dispute to be “set down for a trial.”4 Even though he told the learned Adjudicator that the contract was at his office5, Mr Finlay did not ask for an adjournment so that he could get a copy delivered to the tribunal. [6] I do not accept that Messrs Finlay and Woo did not know they were attending a hearing. Messrs Finlay and Woo had witnesses available at the hearing.6 The notice of hearing states: …the hearing of this application will take place before the Queensland Civil and Administrative Tribunal. This matter will be heard by the Tribunal at the place, time and date stated in this notice. [7] The failure to provide a copy of the contract at the hearing is inexplicable. The evidence filed with the application for leave to appeal should not be admitted and I will determine the application only on the basis of the evidence before the learned Adjudicator. [8] It follows, from my comments about the application to file fresh evidence that I do not accept that the learned Adjudicator prevented production of the contract. There is no basis for leave to appeal on this ground. [9] It is true that there was no written tenancy agreement. That does not mean that an agreement did not exist between the parties. Section 12 of the Residential Tenancies and Rooming Accommodation Act 2008 provides that a residential tenancy agreement is an agreement under which a person gives to someone else a right to occupy residential premises as a residence. Once the fact of occupation is established, it does not matter whether the agreement is in writing or oral. Messrs Finlay and Woo‟s application for leave to appeal on the grounds that there was no tenancy agreement must also fail. [10] 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 2 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408. 3 Transcript page 6, line 38. 4 Transcript page 7, line 21. 5 Transcript page 7, line 11. 6 Transcript page 7, line 45. -- 3 of 4 -- 4 capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.7 [11] An appellate tribunal may interfere, however, if the conclusion at first instance is „contrary to compelling inferences‟ in the case.8 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.9 [12] Messrs Finlay and Woo‟s arguments about the facts depend upon me having regard to the contract now produced. I have already stated that the application should be determined on the material before the learned Adjudicator. There is nothing in the transcript that persuades me that the learned Adjudicator should have taken a different view of the facts. [13] There is no question of general importance that should be determined by the appeal 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. 7 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. 8 Chambers v Jobling (1986) 7 NSWLR 1 at 10. 9 Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ. -- 4 of 4 --