Choudhuri v Whight [2011] QCATA 193

CITATION: Choudhuri v Whight [2011] QCATA 193 PARTIES: Mr Gour Choudhuri v Ms Melissa Whight APPLICATION NUMBER: APL133-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member Peta Stilgoe, Member DELIVERED ON: 18 July 2011 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal refused. CATCHWORDS: Queensland Civil and Administrative Tribunal Act 2009, ss 137, 138 Dearman v Dearman (1908) 7 CLR Fox v Percy (2003) 214 CLR 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 (QCAT Act). REASONS FOR DECISION Mr Oliver [1] In this matter the Appeal Tribunal consisted of Ms Stilgoe, QCAT Member and me. I have had the benefit of reading her reasons in draft. I agree with her reasons, and her conclusions, and the order she proposes. Ms Stilgoe [2] Mr Choudhuri owns a property at Graceville. At the time of the January 2011 floods, Ms Whight was a tenant in that property. She brought an -- 1 of 3 -- 2 application in the tribunal asking that the tenancy be terminated on the grounds that the property was unliveable due to flood damage. The learned Adjudicator ordered that Ms Whight receive $6,253.57 compensation for rent paid by Ms Whight from 11 January 2011 to the end of the tenancy. [3] Mr Choudhuri has appealed the learned Adjudicator‟s decision on these grounds: a) Ms Whight only claimed the rent rebate after she gave notice of her intention not to renew the lease. b) The water ingress issue had been addressed by the property manager. c) Ms Whight did not put in a claim for rent rebate within one month of the event as was required. d) The property was not flood affected. e) Ms Whight removed the carpet on her own decision and against the advice of the property manager. [4] 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? [5] The difficulty with Mr Choudhuri‟s application is that none of these matters was raised at the hearing. Mr Choudhuri‟s agent did not dispute that the property had been inundated; she did not tell the learned Adjudicator that the water damage issues had been addressed; she did not tell the learned Adjudicator that the carpet had been removed contrary to her advice. Indeed, the agent‟s only comment was that Mr Choudhuri was reluctant to give a rent rebate as the tenancy hadn‟t been formalised and the keys hadn‟t been handed back.1 [6] Both Mr Choudhuri and Ms Whight have filed new material with their submissions to the appeal tribunal. The tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined2. Neither party has provided an explanation as to why this material was not available earlier. 1 Transcript page 6, lines 26-28. 2 Queensland Civil and Administrative Tribunal Act 2009, ss 137 and 138. -- 2 of 3 -- 3 [7] While I accept that Ms Whight did not serve the necessary Form 13 within 1 month of the event, that failure has to be put into context. Ms Whight‟s application notes that she tried to reinstate the house but that it became apparent, particularly in light of an engineer‟s report, that the house was unliveable. Mr Choudhuri‟s material is curiously silent about the findings of his engineer. [8] The fact sheet does make the point that, in addition to a right to give notice that the tenancy is at an end, Ms Whight was also able to make an application for a rent reduction if the property was damaged but she decided to stay. That was the basis of the learned Adjudicator‟s decision. [9] 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.3 [10] An appellate tribunal may interfere, however, if the conclusion at first instance is „contrary to compelling inferences‟ in the case.4 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.5 [11] The learned Adjudicator‟s decision to give a rent rebate can be supported by the evidence before him and I can find no compelling reason to come to a different view. If I had regard to the fresh material filed by both parties, there would be even more reason to find that the learned Adjudicator‟s decision was correct. [12] 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. 3 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. 4 Chambers v Jobling (1986) 7 NSWLR 1 at 10. 5 Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ. -- 3 of 3 --