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Pryor v Ray White Hervey Bay[2015] QCATA 151

Pryor v Ray White Hervey Bay[2015] QCATA 151

CITATION:

Pryor v Ray White Hervey Bay [2015] QCATA 151

PARTIES:

Helen Pryor

(Applicant/Appellant)

v

Ray White Hervey Bay

(Respondent)

APPLICATION NUMBER:

APL115-15

MATTER TYPE:

Appeal

HEARING DATE:

30 June 2015

HEARD AT:

Brisbane 

DECISION OF:

Justice Carmody

DELIVERED ON:

30 July 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

THE ORDER OF THE TRIBUNAL IS THAT

  1. Leave to appeal is refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCIES – where the applicant unsuccessfully filed an application in the Magistrates Court for the recovery of part of a bond retained by the respondent for property damage allegedly sustained to a garage door – where the Acting Magistrate ordered that the portion of the bond retained for property damage to the garage door be disbursed to the respondent – where the applicant filed an appeal – whether the  Acting Magistrate erred in finding that property damage had been sustained by the garage door during the subsistence of the tenancy – whether the Acting Magistrate erred in failing to provide procedural fairness to the applicant by considering the request for the disbursement of the bond – whether the Acting Magistrate erred in accepting the oral testimony of an agent of the respondent – whether the Acting Magistrate erred failed to provide the applicant with procedural fairness by relying on a visual recording adduced by the applicant. 

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32

Briginshaw v Briginshaw (1938) 60 CLR 336.

Davidson v J S Gilbert Fabrications Pty Ltd (1986) 1 Qd R 1.

Fox v Percy (2003) 2014 CLR 118.

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378.

Pickering v McArthur [2005] QCA 294.

Slater v Wilkes [2012] QCATA 12.

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]
    The applicant challenges the correctness of a tribunal decision on the grounds that:
    1. the tribunal erred in finding that the garage door had sustained property damage caused during the tenancy of the applicant;
    2. the tribunal erred in failing to provide procedural fairness by considering the respondent’s request for compensation for property damage sustained to the garage door, which was not raised in the originating application;
    3. the tribunal erred in accepting the oral testimony of the respondent; and
    4. the tribunal erred in failing to provide procedural fairness to a party by receiving evidence of a visual recording of the operation of the garage door, which had not been observed by the applicant.
  2. [2]
    Tribunal decisions are intended to be final and binding not merely provisional pending appeal or reconsideration.  The successful party is ordinarily entitled to the “fruits” of victory including full and effective compliance with the terms of favourable orders.
  3. [3]
    As a party to a minor debt proceeding the applicant cannot appeal a tribunal’s decision without leave or permission to do so.  The leave proviso is aimed at precluding attempts by dissatisfied parties to regurgitate the merits in the hope of a better result in a second forum.
  4. [4]
    The chance to change an adverse result is not given on request or to placate a disgruntled litigant who are impelled to keep going as a matter of perceived principle or pride.
  5. [5]
    The test for deciding whether leave to appeal should be granted or not is a demanding one based on settled criteria which relevantly include a reasonably arguable case of error in the tribunal decision and the necessity to correct a resulting substantial injustice.[1]
  6. [6]
    The appeals tribunal has decided not to grant the applicant leave to appeal because no arguable appealable error has been identified.   
  7. [7]
    There is no appealable error simply because one version of disputed events is preferred to another equally plausible but less convincing account. 
  8. [8]
    As Member Dr J. Forbes explains:

It is not nearly enough for a party [applying for leave to appeal] to express disappointment at the original decision, or a feeling that justice has not been done.  It is not [an appellable error] to prefer one version of the facts to another, or to attribute more weight to the evidence of witness “A’ and the testimony of witness “B”…  Findings of fact will not usually be disturbed on appeal if the findings of fact by the original decision maker have rational, albeit debatable support on the evidence.  Where reasonable minds may differ, a decision cannot properly be called erroneous, simply because one conclusion has been preferred to another possible conclusion.[2]

  1. [9]
    Judicial fact finding is simply a familiar but fallible human process limited by its heavy dependence on unequal and imperfect cognitive powers of observation, interpretation, recollection and communication of witnesses as well as their intrinsic human traits and characteristics such as honesty, reliability, reasonableness, objectivity, values and prejudices.
  2. [10]
    The whole “truth” about what really happened or who said what to whom and, if it matters, why, is therefore, rarely ascertainable with absolute certainty. One reason is that evidence can be deceptive or incomplete because of what is missing or has not been found in time.  Moreover, the same body of evidence is commonly capable of supporting two equally plausible propositions or reasonable but contrary or even opposite conclusions without either being demonstrably right or manifestly wrong.  Thus, witnesses to the same event can hold equally strong but opposing opinions based on different interpretations of what they saw.  Depending on which side they support a match winning try can be viewed by spectators as either great football or bad or biased refereeing.
  3. [11]
    Hence, the standard of proof required is reasonable satisfaction;[3] that is, on the balance of probabilities not conclusively or beyond any doubt and the practice of not disturbing findings of fact on appeal if the totality of the evidence presented to the tribunal at a hearing is reasonably capable of supporting them even if they are consistent with an alternative interpretation.[4]
  4. [12]
    This approach is consistent with the goal of resolving money disputes within the tribunal’s jurisdiction in a just, fair, economical and reasoned way.
  5. [13]
    It also reflects the public interest in the finality of litigation and the parsimonious use of scarce judicial resources.
  6. [14]
    Importantly, choosing between conflicting witnesses or disputed recollections is more a matter of intuitive reasoning, impression and degree than judgment[5] whereas here the resolution of a case depends heavily on credibility it is enough for the tribunal to say why one witness was preferred over another.  Conduct more consistent with uncontentious primary facts or on independent confirmation by, for example, a document may make the difference in a case finely balanced.
  7. [15]
    Despite the considerable in general shortcomings of the judicial method the decision maker clearly and coherently identified and adequately explained what and why the respondent’s evidence was accepted over the applicants on significant issues.  The case each party presented was properly understood.  The contrary arguments were fairly heard and determined in a reasoned way.

Context

  1. [16]
    The applicant is a former tenant dissatisfied with an order made by an acting magistrate under s 137 of the Residential Tenancies and Rooming Accommodation Act 2008 (the RTA Act).
  2. [17]
    She had claimed the return of balance of the rental bond retained to cover the cost of rectifying an alleged breach of clause 37 of the standard tenancy agreement by not leaving the premises as far as possible in the same condition at the end of the tenancy they were in at the beginning (excepting fair wear and tear) due to irreparable damage to the garage door of the premises.
  3. [18]
    The landlord’s agent tendered photographs, a tradesman’s quote and tax receipt to prove both liability and quantum (exhibit 4).
  4. [19]
    The applicant denied responsibility for any damage and sought return of the retained amount as well as compensation of $100.00 for carpet cleaning.
  5. [20]
    Both claims were dismissed based on a finding that the garage door of the premises had been negligently or accidently damaged beyond repair during the tenancy (T1-19:24) and that therefore the applicant was liable for the full cost of replacement.
  6. [21]
    She initially said that the door was not damaged at all apart from some minor paint chipping which she claimed was already there when she moved in (T1 -18:15) and produced a DVD (exhibit 1) in support (T1-7).
  7. [22]
    At T1-6:25, however, she conceded having run “into” … the roller door … from inside the garage as (she) was backing (her car) out …” but was adamant that it was still operating normally at the time of final inspection (T1-6:10).
  8. [23]
    The tribunal reasoned that if the disputed damage had been there at the start of the tenancy the applicant would probably have noted it on the entry condition report just as she had done with numerous other relatively minor defects (T1-20:5).

Reasons

Property damage to garage door

Factual finding of property damage to the garage door

  1. [24]
    The finding of damage was based on the tribunal’s visual comparison of rival documents.  There is nothing to indicate that this finding was not open or unreasonable.
  2. [25]
    Aside from the photographs there was other compelling evidence including admissible hearsay statements in the tradesman’s quote and invoice capable of establishing to the tribunal’s reasonable satisfaction that the damage was done during not before the tenancy and what caused it.
  3. [26]
    Moreover, it was legitimate for the tribunal to work on the logical assumption that a tenant who takes as much care in completing an entry condition report as the applicant apparently did here would most likely have seen and recorded any discernable damage to protect her interests.  The fact that the applicant did not was a telling factor rationally suggesting that her assertions at (T1-7) and (T1-18:15) though genuine were more definite than historically reliable.
  4. [27]
    Accordingly, there is nothing indicating that the overall interests of justice require or justify a different liability finding.

Measure of compensation for property damage to the garage door

  1. [28]
    The landlord is entitled to be put back so far as money can do it into the same position as if the damage had not occurred.  Prima facie, subject to reasonableness and the duty to mitigate, this is the cost of repair.[6]  There was no evidence of the age and value of the door at the time of entry but it is hard to see how the cost of a new door is the true measure of the lessor’s loss.  Therefore, the order may inadvertently have had the practical effect of putting the lessor in a better rather than the pre-existing financial position.  It might have been fairer to give the applicant some credit for betterment if it could be quantified.
  2. [29]
    On this basis, the applicant’s dissatisfaction with being ordered to foot the bill for the full replacement cost of the garage door on the basis of what looks to my eye, at least, as relatively minor reparable damage is understandable.  That said, however, the replacement finding was strictly open on the evidence and uncontradicted by any other material.  There is, therefore, no reason for setting it aside in this forum.  

Failure to provide procedural fairness in awarding compensation for damage to garage door

  1. [30]
    The applicant submitted that the Tribunal erred by failing to provide procedural fairness in considering the request for compensation for damage to the garage door which was not particularised in the application. 
  2. [31]
    The originating application filed by the applicant in the Hervey Bay Magistrates Court on 3 November 2014 sought, among other things, the recovery of $766.00 withheld from the bond.  In the originating application, the applicant supplied the following reasons supporting her application for recovery of the bond:

$766.00 Balance of Bond.

Roller door @ (sic) unit 8, 137 Freshwater Street, was totally unnecessary.  Was working normally when I left…

  1. [32]
    In a statement filed by the applicant with the Tribunal, the applicant asserts that:

01.10.14 Rachel claimed full amount of bond.

02.10.14 Rachel told my daughter the claim is for the roller door I was (sic) supposedly had run into from garage to outside.

29/10/14 New roller door installed at unit 8 – this an [redacted by applicant] should never have been. Guess she didn’t want me to get my bond back.

  1. [33]
    The transcript of the original tribunal hearing on 4 March 2015 further demonstrates that the applicant understood the subject matter of the proceedings and was adequately prepared to make submissions on the matter.
  2. [34]
    The originating application and supporting statement demonstrates that the applicant understood that the bond was withheld to replace a damaged garage door. The transcript demonstrates that the applicant attended the tribunal hearing adequately prepared to make submissions regarding the alleged property damage sustained by the garage door during the subsistence of her tenancy.  It was appropriate, on finding damage to the garage door, for the Tribunal to order the disbursement of withheld bond monies in favour of the respondent.
  3. [35]
    Accordingly, leave to appeal should not be granted on this ground. 

Acceptance of oral testimony of the respondent

  1. [36]
    The applicant submits that the Tribunal erred in accepting the oral testimony of the respondent.  The applicant has failed to articulate any grounds upon which this Tribunal may reject the evidence given by the respondent.  Indeed, the applicant has failed to nominate the relevant portions of the oral testimony which should be rejected as incredible or unreliable.
  2. [37]
    An appellate tribunal may only evaluate the reliability and credibility of witness testimony on the basis of the transcript of proceedings.  In contrast, the original decision-maker is able to observe the verbal and non-verbal context of the witness’ evidence, including their demeanour, gesticulations, facial expressions, intonation, verbal modulation and speech patterns.  As the non-verbal and verbal context of communication is integral to any assessment of a witness’ credibility and reliability, an appellate tribunal should not interfere with the primary decision-maker’s findings in the absence of clear and compelling grounds. 
  3. [38]
    Accordingly, leave to appeal should not be granted on this ground. 

Failing to provide procedural fairness by receiving evidence in the form of a visual recording, which had not been observed by the applicant

  1. [39]
    The applicant submits that the tribunal erred in failing to provide procedural fairness by receiving evidence in the form of a visual recording regarding the operation of the garage door which purportedly had not been observed by the applicant.
  2. [40]
    This submission is self-evidently false.  The only visual recording produced to the Tribunal appears to have been the recording tendered by the applicant.  The transcript demonstrates that the applicant operated the visual recording in the presence of the Magistrate and the respondent.
  3. [41]
    Accordingly, leave to appeal should not be granted on this ground.

Orders

  1. [42]
    The application for leave to appeal is refused. 

Footnotes

[1] Pickering v McArthur [2005] QCA 294, [3].

[2] Slater v Wilkes [2012] QCATA 12, [6].

[3] Briginshaw v Briginshaw (1938) 60 CLR 336, 362.

[4] Fox v Percy (2003) 2014 CLR 118, 125-126.

[5] Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378.

[6] Davidson v J S Gilbert Fabrications Pty Ltd (1986) 1 Qd R 1.

Close

Editorial Notes

  • Published Case Name:

    Pryor v Ray White Hervey Bay

  • Shortened Case Name:

    Pryor v Ray White Hervey Bay

  • MNC:

    [2015] QCATA 151

  • Court:

    QCATA

  • Judge(s):

    Carmody J

  • Date:

    30 Jul 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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