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Your Future Property Management v Koroi & Cox[2016] QCATA 34

Your Future Property Management v Koroi & Cox[2016] QCATA 34

CITATION:

Your Future Property Management v Koroi & Cox [2016] QCATA 34

PARTIES:

Your Future Property Management

(Applicant/Appellant)

v

Jason Koroi

Trudie Cox

(Respondents)

APPLICATION NUMBER:

APL400 -15

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane 

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

9 February 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Leave to appeal refused

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY  – where tenancy abandoned – where claim for rent and water charges – where date of abandonment important to calculation – where oral evidence about date of abandonment – where fresh evidence presented to appeal tribunal – whether grounds for leave to appeal

Pickering v McArthur [2005] QCA 294

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

The Chief Executive, Department of Justice and Attorney-General v Janet Schouten Real Estate [2015] QCAT 307

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]
    Jason Koroi and Trudi Cox were tenants in a property managed by Your Future Property Management. They left the property some time in 2015. Future filed an application for rent due from 10 April 2015 to 10 July 2015 plus unpaid water charges.
  2. [2]
    The tribunal had to decide the date the tenancy ended. Future had issued an abandonment notice but the tribunal did not have a copy of that notice before it. At the tribunal’s suggestion, Mr Greenaway, for Future, rang his office to find out the date of the termination notice. He told the tribunal[1] that the notice expired on 18 March 2015. Relying on that information, the tribunal dismissed Future’s claim.
  3. [3]
    Future 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.[2] 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.[3]
  4. [4]
    Future submits that it presented the original abandonment notice to the tribunal at the time of hearing but the tribunal did not take it into consideration. I have read the transcript and looked at the documents on file. That submission is untrue. Future should be very careful not to make submissions to the tribunal that are obviously false. Real estate agents have been disciplined for providing false evidence to the tribunal[4].
  5. [5]
    That the submission is false is confirmed by the fact that Future filed fresh evidence with its application for leave to appeal in these terms: “Please find attached the following documents that could not be located at the time of the original hearing”. An abandonment notice that expired on 26 May 2015 is one of those documents.
  1. [6]
    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?[5]
  1. [7]
    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.
  1. [8]
    I accept that the abandonment notice is a credible document. I do not accept that this document was not reasonably available at the time of the hearing. Mr Greenaway told the tribunal[6] that he couldn’t get into the computer because the office was doing an end of month back up. As the tribunal observed[7], there should have been a hard copy of the notice on the file.  Property managers who appear before the tribunal should bring the whole of their tenancy file, and be able to produce relevant documents on request. The fresh evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the tribunal.
  1. [9]
    Future had the opportunity to preserve the lessor’s right to compensation. The tribunal invited Mr Greenaway to withdraw the application[8] but he was happy to have the application dismissed[9]. The appeal tribunal should not grant leave to appeal just because a party has had a change of heart.
  2. [10]
    The tribunal’s decision, based on evidence that an abandonment notice expired on 18 March 2016, was not in error. Leave to appeal should be refused.

Footnotes

[1]  Transcript page 1-5, lines 15 - 31

[2]   QCAT Act, s 142(3)(a)(i).

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

[4]The Chief Executive, Department of Justice and Attorney-General v Janet Schouten Real Estate [2015] QCAT 307

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

[6]  Transcript page 1-4, lines 5 - 7

[7]  Transcript page 1-4, lines 9 - 10

[8]  Transcript page 1-7, lines 8 - 9

[9]  Transcript page 1-7, lines 4 - 6

Close

Editorial Notes

  • Published Case Name:

    Your Future Property Management v Koroi & Cox

  • Shortened Case Name:

    Your Future Property Management v Koroi & Cox

  • MNC:

    [2016] QCATA 34

  • Court:

    QCATA

  • Judge(s):

    Senior Member Stilgoe OAM

  • Date:

    09 Feb 2016

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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