Abrams and Barclay v Conlan [2011] QCATA 12

CITATION: Abrams and Barclay v Conlan [2011] QCATA 12 PARTIES: Mr Trevor Abrams and Ms Elizabeth Barclay (Appellants) V Mr Conlan (Respondent) APPLICATION NUMBER: APL183-10 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Mr Richard Oliver, Senior Member DELIVERED ON: 28 January 2011 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal is refused. CATCHWORDS : MINOR CIVIL DISPUTE – residential tenancy; where tenant sought to end tenancy as property was not fully fenced; where tenancy terminated and compensation awarded by Adjudicator; where owners of the property allege that termination of the tenancy agreement was the fault of the property agent who misrepresented the property to the tenant; whether there are grounds for appeal Queensland Civil and Administrative Tribunal Act 2009, ss 32, 142(3)(a) Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 429 Cachia v Grech [2009] NSWCA 232, cited Fox v Percy (2003) 197 ALR 201, cited Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, applied McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, cited QUYD Pty Ltd Marvass Pty Ltd [2009] 1 Qd R 41, cited -- 1 of 3 -- 2 APPEARANCES and REPRESENTATION (if any): This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] Mr Conlan, the applicant at first instance, was the tenant of a property at 6/152 Signato Drive, Helensvale. Mr Conlan brought a minor civil dispute application in this Tribunal on 10 August 2010 seeking compensation and a termination order as a fence was not erected on the property resulting in his being unable to fully enjoy and make use of the property. [2] The learned Adjudicator ordered that the respondent pay Mr Conlan $660 for failing to be able to enjoy and make use of the property, and a further $92 for reimbursement of the filing fee. The learned Adjudicator also ordered that the applicant be given leave to amend the application in accordance with section 429 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). [3] The respondents at first instance, Saltair Realty, a business carried on by Owen Morgan Pty Ltd, was the agent for the property owners, Mr Abrams and Ms Barclay, during Mr Conlan’s tenancy. On 26 August 2010, Mr Abrams and Ms Barclay filed an application for leave to appeal the decision of the learned Adjudicator. As this matter arises from a minor civil dispute, leave to appeal is necessary. 1 [4] The applicant’s ground for appeal is that the original application to the Tribunal was based on incorrect and misleading evidence. That is, they submit that Saltair Realty, through Mr Morgan the principal of Owen Morgan Pty Ltd, falsely advertised the property as being fenced and that Mr Morgan should, therefore, be liable to pay the tenant the $752 ordered at first instance and not them. [5] Whether or not leave to appeal should be granted will depend on: if there is a reasonably arguable case of error in the primary decision; 2 if there is a reasonable prospect that the applicant will obtain substantive relief; 3 if leave is necessary to correct a substantial injustice to the applicant caused by some error;4 or if there is a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage.5 1 Queensland Civil and Administrative Tribunal Act 2009 s142(3)(a). 2 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 3 Cachia v Grech [2009] NSWCA 232 at [13]. 4 QUYD Pty Ltd v Marvass Pty Ltd (supra). 5 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580. -- 2 of 3 -- 3 [6] In this case, Mr Abrams and Ms Barclay’s ground for appeal is wholly without merit. Mr Abrams and Ms Barclay neither assert that there was an error of law or an error of fact in the decision at first instance. Their claim for relief is directed to the property agent Saltair Realty on the basis that it was the property agent’s misrepresentation which gave rise to the tenant’s grounds for terminating the tenancy agreement. [7] On the basis of the information provided in Mr Abrams and Ms Barclay’s application for leave to appeal, any complaint they have should be brought as a new matter between them and Mr Morgan, rather than as an appeal against Mr Conlan. [8] No error on the part of the learned Adjudicator has been demonstrated, and none is apparent. The transcript of the proceeding demonstrates that the learned Adjudicator made a decision which was both fair and considerate of the merits of the case. Furthermore, there is no question of general importance in the present matter necessitating a decision of the Appeal Tribunal. 6 Therefore, leave to appeal is refused. 6 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577. -- 3 of 3 --