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Ferraro v Le Vesconte QCATA 71
Ferraro v Le Vesconte  QCATA 71
MICHELLE LE VESCONTE
APL426-15 and APL427-15
Application and Appeals
On the papers
17 May 2016
THE APPEAL TRIBUNAL ORDERS THAT:
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where the applicant sought to recover unpaid debt and rental arrears – whether the Tribunal failed to consider relevant documents – whether the Tribunal made unsupported findings of fact
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32
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
- The applicant is dissatisfied with the decision of the Magistrate at Caloundra sitting as the Tribunal on 21 September 2015 to resolve a minor civil dispute about an alleged unpaid debt and rental arrears.
- The applicant claimed a total of $20,530.50. The respondent was ordered to pay him $1,200 all-up.
- On the applicant’s case the respondent agreed to rent a shop and house at 5 Beerburrum Street, Beerburrum between 30 January 2014 and 15 October 2014 (eight and a half months) of $25,780.50 at the rate of $700 a week or $3,300 per month if he paid all the outgoings.
- The respondent paid a total of $11,250, or the equivalent of about half the amount due.
- However, the Tribunal found, on the basis of concessions the applicant made at the hearing, that he had agreed to the first month rent-free and the following three months at half-rate. She was also satisfied on the evidence that the agreed rent was not $3,300 a month as claimed but $2,500 for each four week period payable in full for the months of June to September inclusive and for only half of October. Leaving a shortfall of $7,500 on account of unpaid rent.
- The Tribunal rejected the loan claim altogether for want of proof. There was no written agreement. Although a bank statement characterised the amount of a withdrawal by the applicant as “loan” for $6,000, the Magistrate gave the notation little weight because the applicant could not explain who recorded it or why.
- The applicant alleged that he lent the respondent the $6,000 to be added to $2,000 of her own to pay the previous tenant’s $8,000 for the value of fittings when she took over their business on the leased premises. However, the Tribunal found that:
“… it was payment that was made by (the applicant) in the hope that he would gain the advantage of getting rid of these difficult tenants, who might have trashed the place otherwise. So I am satisfied it was, in a way, an inducement, and it was certainly to gain a benefit for himself.”
- The “grounds of appeal” complain that the Tribunal did not take the time to read any emails which would have supported the applicant’s claims and relied on a fabricated scrapbook to make flawed factual findings on the rent claim and, by contrast, ignored the bank record to his detriment on the loan claim.
- To meet the “gateway criterion” for leave to appeal, the applicant must demonstrate appealable error resulting in substantial injustice to him if not corrected on appeal.
- The alleged errors relate to facts not law.
- At T1-17, 1-18 of the transcript, the Tribunal was at pains to stress she was willing to accept only relevant email exchanges to help her decide the case but the applicant did not tender any.
- He filed a bundle of emails in the appeal registry on 16 November 2015 which he said supported his case and were “the key evidence in the case and demonstrated and contradicted the findings at first instance”. The emails, according to the applicant, support his version that the respondent tried to force him to lower the rent from $3,300 per month to $2,500 a month, and that if the Magistrate had taken the time to read them she would not have found in the respondent’s favour.
- However, as the respondent rightly points out, the emails are equivocal. Even if they were put in evidence at the tribunal hearing, their interpretation was a question of fact for the Magistrate which could not be overturned unless it was glaringly improbable or similar. In any event, because they were not tendered they were not interpreted or considered and therefore cannot support an appealable error claim.
- The applicant only has himself to blame for not tendering the emails at the hearing. He cannot rely on them now to meet the leave requirements.
- The applicant also says contemporaneous notes relating to the oral rental agreement were fabricated and “the magistrate finding was grossly underestimated”. However, the authenticity of the respondent’s notes and the weight given to them in resolving in the disputes were a matter for the magistrate. They were admissible in the proceedings as documentary hearsay because the ordinary rules of evidence do not apply to limit them to aide-mémoires. As is often the case in disputes of this kind, they were probably the best and most reliable evidence available in any case.
- Finally, the applicant says that if the $6,000 was not a loan then the respondent stole the equipment that the loan paid for and sold it for her own benefit. Again, this challenges a sustainable finding of fact by the Tribunal, which found that he was given consideration for the $6,000 by ridding himself of troublesome tenants and not from any promise by the respondent to repay it.
- Finally, in his “submission” filed 3 March 2016 the applicant asserts that “… during the hearing it became apparent to the applicant that the female magistrate was blatantly bias towards the female respondent and she was not going to take on board any evidence provided by the applicant”.
- This is a scandalous allegation to make. Any impression the applicant had is inadmissible and carries little weight because it is loaded with self-interest. My close reading of the transcript does not give any indication whatsoever of any prejudice against the applicant or bias in favour of the respondent. Thus, not only is the allegation of bias belated; it is inconsistent with the objective facts.
- Leave should be refused.
- Published Case Name:
Ferraro v Le Vesconte
- Shortened Case Name:
Ferraro v Le Vesconte
 QCATA 71
17 May 2016