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Richards v Agree Real Estate QCATA 165
Richards v Agree Real Estate  QCATA 165
Agree Real Estate
On the papers
Senior Member Stilgoe OAM
24 November 2015
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where compensation application determined – where allegation that not all rent was accounted for in ledger – where tribunal indicated reopening application possible – where reopening application filed late – where tribunal granted reopening and heard fresh evidence about ledger – where tribunal reduced amount owing – where tribunal did not accept payments were received by lessor’s agent – where tenant alleged lack of procedural fairness in tribunal failure to adjourn to allow further evidence – where tenants alleged tribunal failure to comply with s 29 obligations – whether grounds for leave to appeal
Queensland Civil and Administrative Tribunal Act 2009 (Qld s 29
Pickering v McArthur  QCA 294
Clarke v Japan Machines (Australia) Pty Ltd  1 Qd R 404
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
- Christopher and Nicole Richards broke a tenancy agreement so that they could purchase, and move into, their own home. Agree Real Estate, acting for the lessor, filed two applications for compensation, including an application for payment of rent until it found a new tenant for the property. On 14 October 2014, the tribunal ordered that Mr and Ms Richards pay Agree $4,594.29.
- On 13 March 2015, Mr and Ms Richards filed an application to reopen the proceeding on the basis that they could now prove that Agree’s tenant ledger did not accurately record all the rent payments they had made. For reasons that escape me, the tribunal did reopen the proceedings and listed it for a further hearing. At the reopened hearing, the tribunal deducted $860 from the original tribunal calculation.
- Mr and Ms Richards want 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.
- Mr and Ms Richards say that the second tribunal did not provide natural justice because it did not adjourn the hearing to enable all relevant material to be disclosed at the hearing. Mr and Ms Richards also say that the tribunal did not comply with its obligation to take all reasonable steps to ensure that they understood the practices and procedures of the tribunal.
- Mr and Ms Richards have filed fresh evidence with their application for leave to appeal which, they say, establishes that Agree did receive, but not receipt, payments of $1,290.
- 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 the parties 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?
- An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party’s case at the initial hearing. Mr and Ms Richards have now completed the painstaking task of reconciling their payments with tenant ledger and requesting traces from the bank to show that the payments went to Agree. This is an exercise they should have completed well before filing their application to reopen on the precise ground that the tenant ledger was wrong. It is a task that they should have completed and presented to the tribunal before the second hearing.
- Mr and Ms Richards referred the tribunal to the birth of their child, who has been chronically ill, and enforcement action taken by the lessor, but neither of these factors explains why they could not produce the reconciliation to the second tribunal hearing. That evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the second tribunal.
- Mr and Ms Richards complain that the tribunal did not adjourn the hearing to enable them to provide further evidence. They filed the application to reopen. One would have thought that, with a delay of almost five months, Mr and Ms Richards had sufficient time to obtain advice about what they needed to present to the tribunal and then sufficient time to obtain that evidence. The learned Adjudicator at the second hearing made exactly the same point as the learned Adjudicator at the first hearing; it is not enough to show the money left Mr and Ms Richards’ bank account. They must also show that the Agree received that money.
- If it had been the first time that Mr and Ms Richards appeared before the tribunal and raised this issue, there might be some basis for arguing an adjournment. Because the proceeding was otherwise closed, and only reopened at Mr and Ms Richards’ request, I can see no reason why the tribunal should have adjourned the proceeding.
- The tribunal has an obligation, under s 29 of the QCAT Act, to ensure parties understand the practices and procedures of the tribunal, the nature of any assertions made in the proceeding and the legal effect of the assertions, and any decision of the tribunal relating to the proceeding. Mr and Ms Richards say that they should have been advised of the standard of evidence required by the tribunal and the procedures required “to gain tribunal access”.
- At the first tribunal hearing, Mr and Ms Richards told the learned Adjudicator that there was a discrepancy of three payments plus the two weeks in advance. The learned Adjudicator identified that this might be a difference of $860, precisely the deduction awarded by the second tribunal. The learned Adjudicator told Mr and Ms Richards what was required or them if they wanted to challenge his order. He told Mr and Ms Richards about the consequences of not paying and how Agree might take enforcement proceedings. The learned Adjudicator at the first hearing fulfilled his s 29 obligation. Mr and Ms Richards were, at that time, appraised of the procedure, the evidence they required and the consequences of the tribunal order.
- It was an unusual step for the tribunal to accept Mr and Ms Richards’ application to reopen. It was not filed within 28 days of the decision. It did not identify a reopening ground. It seems that the tribunal accepted the application only because of the learned Adjudicator’ comments in the first hearing. I am satisfied that the tribunal did fulfil its s 29 obligations. I am not persuaded that Mr and Ms Richards have been subject to any failure to provide procedural fairness.
- There is no reasonably arguable case that the tribunal was in error. Leave to appeal should be refused.
- Published Case Name:
Richards v Agree Real Estate
- Shortened Case Name:
Richards v Agree Real Estate
 QCATA 165
Senior Member Stilgoe OAM
24 Nov 2015