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Morse v Scarfidi & Anor QCATA 11
Morse v Scarfidi & Anor  QCATA 11
Brock Austin Morse
On the papers
Senior Member Stilgoe OAM
27 January 2015
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where damage to roof of tenancy – where tribunal ordered compensation – whether evidence to establish liability – where evidence of quantum questioned – whether grounds for leave to appeal
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Pickering v McArthur  QCA 294
Clarke v Japan Machines (Australia) Pty Ltd  1 Qd R 404
Chambers v Jobling (1986) 7 NSWLR 1
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 (Qld) (QCAT Act).
REASONS FOR DECISION
- Mr Morse rented a house owned by Mr and Mrs Scarfidi. At the end of the tenancy, there were a number of items that required rectification. One of these related to the roof. There were large patches of silicon on the roof, which had damaged the Colorbond. Two Justices of the Peace, sitting in the minor civil disputes jurisdiction of the tribunal ordered that Mr Morse pay Mr and Mrs Scarfidi the cost of repairing the roof.
- Mr Morse wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.
- The tribunal ordered Mr Morse pay Mr and Mrs Scarfidi $1,760 for roof repairs. Since the hearing, Mr Morse has obtained his own quote for repairs at a cost of $620. He submits that, if he is liable for damage to the roof, he should only have to pay the cheaper amount.
- The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Mr Morse have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?
- Mr Morse told the learned Justices at the hearing he had three alternative quotes. On further questioning, Mr Morse had only one quote for the supply, but not installation, of sheeting. Mr Morse could have supplied further quotes at the hearing and he has not explained why he did not do so. Further, I am not persuaded that the evidence is credible. The quote Mr Morse has filed refers to “corrugated iron” whereas the roof is sheeted in Colorbond. There is a significant difference in the cost of those products. The evidence should not be admitted. The application for leave to appeal should proceed on the basis of the evidence before the tribunal.
- Mr Morse submits, as he did at the hearing, that the entry condition report did not refer to the roof. He says the managing agent failed to take photos of the roof. He says he denies causing any damage to the roof and says the managing agent cannot prove he damaged the roof.
- The learned Justices had to decide between two competing versions of events. They preferred the evidence of Mr and Mrs Scarfidi. There is ample evidence to support that finding. Mr Morse’s denial was equivocal. When first questioned, he did not deny that he put reindeer on the roof. Instead he said:
Yeah, I understand that you may have drove past. However, if there was a big issue, take photos, if there was, for evidence. Report it to your real estate. But I did not receive that.
- Mr Morse’s truthfulness was called into question in other evidence. He told the learned Justices that he had three quotes for the replacement of the roofing but, when asked to produce them, he supplied only one quote. He initially told the managing agent he would fix the roof. As the learned Justices observed, this is not the expected behaviour from a person who denies liability.
- My sole duty is to determine whether there is an error in the primary decision. It is not my task to decide where the truth lay as between the competing versions given by the parties. There is nothing in the transcript to persuade me that the learned Justices were in error. There is nothing in the transcript to suggest that the learned Justices should have taken a different view of the facts.
- Mr Morse also submits that he was entitled to two quotes for the roofing repairs. This is a common misconception. A party claiming compensation from the tribunal has to provide evidence of loss. That can be one quote, as long as the quote, on its face, is not obviously inflated or unreasonable. The respondent then has an opportunity to demonstrate that the claim was inflated. Mr Morse failed to do so. The learned Justices did not err by accepting the only quote produced to them.
- There is no reasonably arguable case that the learned Justices were in error. Leave to appeal should be refused.
 QCAT Act s 142(3)(a)(i).
 Pickering v McArthur  QCA 294 at .
 Clarke v Japan Machines (Australia) Pty Ltd  1 Qd R 404 at 408.
 Transcript page 1-23, lines 5 – 40.
 Transcript page 1-24, lines 34 – 38.
 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125 –126.
 Chambers v Jobling (1986) 7 NSWLR 1 at 10.
 Transcript page 1-15, line 25 to page 1-16, line 9.
 Transcript page 1-18, line 25 to page 1-19 line 10.
 Transcript page 1-18, lines 28 – 30.
 Transcript page 1-23, line 5 to page 1-24, line 38.
 Transcript page 1-51 lines 41 – 47.
 Fox v Percy (2003) 214 CLR 118 at 129 per Gleeson CJ, Gummow and Kirby JJ.
- Published Case Name:
Morse v Scarfidi & Anor
- Shortened Case Name:
Morse v Scarfidi & Anor
 QCATA 11
Senior Member Stilgoe OAM
27 Jan 2015