Dunne v Barzen [2011] QCATA 178

CITATION: Dunne v Barzen [2011] QCATA 178 PARTIES: William Patrick Dunne (Applicant/Appellant) v Mick Barzen (Respondent) APPLICATION NUMBER: APL107-11 MATTER TYPE: Appeal HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President DELIVERED ON: 14 July 2011 DELIVERED AT: Brisbane ORDERS MADE: Application for leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RENTAL TENNANCIES – where the applicant was renting an industrial shed to the respondent – where the respondent fell into arrears in rent payments – where the applicant brought an application in QCAT’s Minor Civil Disputes jurisdiction seeking an order that the respondent pay the applicant the rent owing – where the Magistrate found that there was insufficient evidence to prove that the amount sought was in fact owed by the respondent, and ordered that the respondent pay the applicant $356.25 plus costs – where the applicant now seeks leave to appeal – whether leave to appeal should be granted Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435, cited Hawkins v Pender Brothers Pty Ltd [1990] 1 Qd R 135, applied PS Business Holdings Pty Ltd v Duncan & Anor [2010] QCATA 19, cited -- 1 of 3 -- 2 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] Mr Barzen was renting an industrial shed from Mr Dunne at a cost of $2,000 per month from May 2006 to July 2008 according to terms established under an oral agreement between them. Mr Barzen had fallen into arrears, so Mr Dunne brought an application in QCAT’s Minor Civil Disputes jurisdiction seeking an order that Mr Barzen pay the rent owing, in the amount of $6,000. [2] The learned presiding Magistrate, acting in her capacity as an Ordinary Member of QCAT, found that the evidence presented indicated that Mr Barzen owed only $356.25 and ordered that he pay Mr Dunne that amount plus costs of $125.50. [3] Mr Dunne now seeks leave to appeal that decision. Leave is necessary: QCAT Act, s 142(3)(a)(i). [4] 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] In his application for leave to appeal, Mr Dunne indicates his discontent with the Magistrate’s finding that she was not satisfied that the financial records he had provided were sufficient evidence to prove that Mr Barzen actually owed $6,000 in rent. [6] In her oral reasons at the end of the hearing, the learned Magistrate considered all the evidence that both parties had provided and concluded that the bookkeeping method used by Mr Dunne was insufficient to establish, on the balance of probabilities, that Mr Barzen had not paid the $6,000 in question. The Magistrate further indicated that only bank statements would be sufficient to serve this purpose. Mr Dunne was unable to produce any bank statements at the hearing. [7] With respect, this finding was reasonable. The transcript reveals that the evidence Mr Dunne presented at the hearing did not make it clear on the balance of probabilities whether Mr Barzen’s unpaid rent amounted to $6,000. Furthermore, as Mr Dunne’s son had given Mr Barzen receipts for payments of rent, more compelling evidence would have been required in order to establish exactly how much rent had been paid, and how much owed. -- 2 of 3 -- 3 [8] The learned Magistrate’s reasons show she carefully considered each party’s evidence, and provide a clear explanation for her conclusion. Nothing in them suggests any error or misunderstanding; rather, it is apparent that she took the time to ensure she understood what each party alleged, and to find a logical path to her decision. [9] In his application for leave to appeal, Mr Dunne states that he can now produce his bank statements for the purposes of the appeal, if they are required. New evidence will ordinarily only be allowed on appeal when it could not, by reasonable diligence, have been obtained for the original hearing, is credible, and might have produced an opposite result.1 [10] That is not, it appears, the case here. There is no apparent reason why the bank statements could not have been produced at the hearing at first instance, and it was reasonable for the learned Magistrate to have expected that Mr Dunne would have brought them to the hearing. [11] As indicated on the QCAT website, on the page titled ‘On the day’, parties must be prepared to effectively prove their case at their Tribunal hearing. The website contains this advice: You need to bring every document, invoice, receipt, quotation and or other piece of evidence that you are relying on and give them to the members or adjudicators at the hearing. Make sure that you are organised and have evidence to support the main points of your argument.2 [12] In any event, it is unclear that the bank statements would have affected the outcome of the proceedings. In his submissions in support of his application for leave to appeal, Mr Dunne now appears to claim that the arrears amount, in fact, is $9000. That uncertainty, even after recourse to further documents, is part of the very problem which led the learned Magistrate to the decision she reached. [13] An applicant for leave to appeal must show a prima facie case of error in the primary decision. Nothing in Mr Dunne’s material can be said to identify any procedural unfairness or to raise anything else that might substantiate an appeal; nor is any unfairness evident on a reading of the transcript. [14] Leave to appeal is refused. 1 Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435; PS Business Holdings Pty Ltd v Duncan & Anor [2010] QCATA 19 at 5. 2 Available at: http://www.qcat.qld.gov.au/on-the-day.htm#Hearing. -- 3 of 3 --