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Morse v Scarfidi & Anor[2015] QCATA 11

Morse v Scarfidi & Anor[2015] QCATA 11

CITATION:

Morse v Scarfidi & Anor [2015] QCATA 11

PARTIES:

Brock Austin Morse

(Applicant/Appellant)

v

Gaetano Scarfidi

Norma Scarfidi

(Respondents)

APPLICATION NUMBER:

APL431-14

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane 

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

27 January 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Leave to appeal refused.

CATCHWORDS:

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 [2005] QCA 294

Clarke v Japan Machines (Australia) Pty Ltd [1984] 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

  1. [1]
    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.
  2. [2]
    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.[1] 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.[2]
  3. [3]
    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.
  4. [4]
    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?[3]
  5. [5]
    Mr Morse told the learned Justices at the hearing he had three alternative quotes.[4] On further questioning, Mr Morse had only one quote for the supply, but not installation, of sheeting.[5] 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.
  6. [6]
    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.
  1. [7]
    The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[6]  An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[7] 
  1. [8]
    The learned Justices heard evidence that there were reindeer affixed to the roof over Christmas 2012/13, during Mr Morse’s tenancy.[8] Mr Morse denied that.[9]
  1. [9]
    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:[10]

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.

  1. [10]
    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.[11] 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.[12]
  1. [11]
    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.[13] 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.
  1. [12]
    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.
  1. [13]
    There is no reasonably arguable case that the learned Justices were in error. Leave to appeal should be refused.

Footnotes

[1]  QCAT Act s 142(3)(a)(i).

[2] Pickering v McArthur [2005] QCA 294 at [3].

[3] Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.

[4]  Transcript page 1-23, lines 5 – 40.

[5]  Transcript page 1-24, lines 34 – 38.

[6] Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125 –126.

[7] Chambers v Jobling (1986) 7 NSWLR 1 at 10.

[8]  Transcript page 1-15, line 25 to page 1-16, line 9.

[9]  Transcript page 1-18, line 25 to page 1-19 line 10.

[10]  Transcript page 1-18, lines 28 – 30.

[11]  Transcript page 1-23, line 5 to page 1-24, line 38.

[12]  Transcript page 1-51 lines 41 – 47.

[13] Fox v Percy (2003) 214 CLR 118 at 129 per Gleeson CJ, Gummow and Kirby JJ.

Close

Editorial Notes

  • Published Case Name:

    Morse v Scarfidi & Anor

  • Shortened Case Name:

    Morse v Scarfidi & Anor

  • MNC:

    [2015] QCATA 11

  • Court:

    QCATA

  • Judge(s):

    Senior Member Stilgoe OAM

  • Date:

    27 Jan 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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