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Li v Houston Property Services QCATA 101
Li v Houston Property Services  QCATA 101
Jia (Jessie) Li
Houston Property Services
On the papers
Senior Member Stilgoe OAM
15 February 2016
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where claim for compensation – where respondent did not appear at hearing – where reopening refused – where fresh evidence filed – whether fresh evidence should be accepted – whether grounds for leave to appeal
Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 188(4)
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
- Jia (Jessie) Li was a tenant in university accommodation managed by Houston Property Services. At the end of the tenancy, Houston filed a claim for compensation. Ms Li did not attend the hearing. The Tribunal ordered Ms Li pay Houston $1,762.45.
- Ms Li appealed that decision. Because she did not appear at the hearing, I ordered that the proceeding return to the Tribunal as an application for reopening under s 138 of the QCAT Act. The application for reopening was refused, so Ms Li is back before the Appeal Tribunal.
- 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.
- Ms Li’s grounds for appeal are all challenges to the Tribunal’s findings of fact. She has filed fresh evidence with her application for leave to appeal which, she says, challenges the Tribunal’s findings.
- 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 hearing? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?
- Ms Li did not produce the evidence at the hearing because she did not attend the hearing. An application to file fresh evidence should not be used to circumvent the Tribunal’s decision to refuse to reopen a proceeding. If the Tribunal was not satisfied that Ms Li had a reasonable excuse to reopen the proceeding, I should be slow to allow fresh evidence.
- Ms Li has not explained why she did not attend the hearing. Further, I am not satisfied that the evidence will have an important impact on the result of the case. Some of the material supports Houston’s position, and some of it does not relate to the issues before the Tribunal. Finally, I am concerned about the credibility of the evidence. Ms Li has filed copies of emails that show no transmission information. The emails appear to have been extracted, or reprinted. The fresh evidence should not be admitted.
- Ms Li is challenging each of the amounts claimed by Houston. In fact, at the hearing, Houston restricted its claim to unpaid rent and cleaning. Therefore, I do not need to consider Ms Li’s arguments about the key deposit, electricity or reletting fee.
- As to the cleaning charge, Ms Li complains that the fee was non-specific, that she cleaned her room before she left, and there was no mention of a cleaning charge in the lease.
- The Tribunal had pictures of the tenancy that showed it was not clean when Ms Li left. Houston provided two invoices for cleaning, both of which detailed the work done. Ms Cathcart, principal of Houston, gave sworn evidence to the Tribunal.
- Clause 37 of the tenancy agreement echoes s 188(4) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act) which states that a tenancy must be left in substantially the same condition at the end of the tenancy as they were in at the start of the tenancy. Section 420 of the RTRA Act allows the Tribunal to make compensation orders where there is a breach of the tenancy agreement. The tenancy agreement does not need to mention a cleaning charge specifically.
- The evidence can support the Tribunal’s findings and I can find no compelling reason to come to a contrary view.
- There is nothing in the transcript to persuade me that the Tribunal should have taken a different view of the facts. There is no reasonably arguable case that the Tribunal was 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.
 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 1-6, lines 42 – 47.
 Transcript page 1-11.
 Transcript page 1-12.
- Published Case Name:
Jia (Jessie) Li v Houston Property Services
- Shortened Case Name:
Li v Houston Property Services
 QCATA 101
Senior Member Stilgoe
15 Feb 2016