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Pahwa v Avery QCATA 153
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Pahwa & Anor v Avery & Ors  QCATA 153
PETER JOHN AVERY
JILL LESLIE AVERY
BENJAMIN JOHN AVERY
13 November 2019
On the papers
Member J R Forbes
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – TENANCY -– Residential Tenancies and Rooming Accommodation Act 2008 (Qld) – damage to tenants’ property caused by malfunction of hot water system and drains – whether landlord liable to compensate tenants for damage – where liability and quantum in dispute – whether applicant tenants complied with section 416 of RTA – where respondent landlords did not adduce quantum evidence at trial – whether leave to be given to adduce new evidence on quantum – whether new evidence qualifies as fresh evidence – whether application to adduce new evidence should be allowed – where application refused – whether primary decision affected by appellable error – where no error found – where application for leave to appeal refused.
Acts Interpretation Act 1954 (Qld) s 39A(1)(b)
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 4, s 32, s 61, s 123, s 142(3)(a)(i). 143(5)
Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 399, s 403, s 416, 516
Abalos v Australian Postal Commission (1990) 171 CLR 167
Autodesk Inc v Dyason (No 2)(1993) 176 CLR 300
Avery & Ors v Pahwa & Anor  QCATA 53
Devries v Australian National Railways Commission (1993) 177 CLR 472
Fox v Percy (2003) 214 CLR 118
Green v Hatchy Investments Pty Ltd  QCATA 274
Harrison & Anor v Schipp & Ors (2002)) 54 NSWLR 612
McDonald v McDonald (1965) 113 CLR 529
Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611
Warwick Real Estate & Property Sales Pty Ltd v Bailey & Morrow  QCATA 262
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
The dispute arises
- ‘Catastrophic’ is the learned Adjudicator’s apt description of the scene at a home unit at Southport’s Main Beach on 13 September 2016.
- A hot water tank on the upper floor burst, spilling its contents of some 350 litres, and a blocked drain pipe caused a sewage system overflow. The effluents invaded the upper floor and the one below, and the kitchen ceiling collapsed. Items damaged beyond repair included a considerable amount of furniture, the property of the tenants.
- The unit was leased by the intending Appellants (‘the Pahwas’) to the Respondents (‘the Averys’) from about August 2007 to mid-September 2016.
- The Averys commenced these proceedings as a minor civil (tenancy) dispute on 10 March 2017, claiming a rent reduction and damages for destruction of their property under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘the RTA’). The total amount claimed was $88,173. The Tribunal’s general jurisdictional limit of $25,000 does not apply to tenancy matters.
- The Averys heads of claim may be summarised as follows (i) a rent reduction of $31,250 for loss of ‘full use and amenity’ of the unit in 2 bedrooms, mould nuisance and a collapsed floor; and (ii) $56,923 for damage to property, principally furniture.
- We are not now concerned with the rent reduction claim. It was dismissed by the Tribunal at first instance, and against that decision there is no appeal.
Is the leave application within time?
- However, it is necessary to consider, first, whether the Pahwas’ application for leave to appeal is competent.
- The Adjudicator delivered her decision and reasons on 3 October 2018, in the presence of the Appellants and the Respondents. The Pahwas filed their application for leave on 4 December 2018. The Averys now contend that it was filed out of time.
- An application for leave to appeal must be filed within 28 days of the ‘relevant day’. The latter expression is defined in QCAT Act subsection 143(5). In this case, in which written reasons were not originally given, the ‘relevant day’ depends on whether the appellant seeks written reasons. If such a request is made, the ‘relevant day’ is the day the appellant receives written reasons. If there is no request, time runs from the day the appellant received notice of the decision – in this case, 3 October 2018.
- The Averys relevant submission predicates that no request for written reasons was made.
- But that assertion is mistaken. Inspection of the Tribunal’s file shows that reasons were requested on 11 November 2018, and posted to the Pahwas’ given address on 5 November 2018. Allowing just 2 days for delivery in the ordinary course of post, the Pahwas received the reasons no earlier than 7 November 2018.
- In the premises, it appears that the application for leave was filed within the prescribed time. The submission to the contrary is rejected. However, I order, if need be, that the time for filing the leave application be extended to 4 December 2018.
- There is a second preliminary question, namely, whether certain additional evidence for the Pahwas should be received as ‘fresh’ evidence. Having led no substantial evidence as to quantum at the trial, the Pahwas now seek to introduce it on appeal.
- Not all additional evidence, albeit relevant, is ‘fresh evidence’. Fresh evidence means material which could not have been discovered earlier by the exercise of due diligence, and which, if received, would probably lead to a different result. The conjunction ‘and’ must be noted; these are not alternative grounds. First, the ‘due diligence’ test must be it must be satisfied. If it were otherwise, the fundamental principle of finality in litigation would be subverted. Hence the threshold requirement of leave to appeal in QCAT’s minor civil cases.
Was section 416 of the RTA observed?
- Two items are suggested as fresh evidence. The first is a notice from the Residential Tenancies Authority dated 11 November 2016 simply stating that the dispute could not be handled by the RTA. In their application for leave to adduce further evidence, dated 1 April 2019, and annexing a copy of the notice, the Pahwas allege that they ‘have only just received a copy of the notice direct from the RTA as [our] agents hold no record of it’.
- The notice is addressed to ‘Keys Realty at Main Beach – Asian Business Connections t/a’. It appears that Keys Realty was then agent for the Pahwas. Therefore, insofar as the alleged non-receipt of the notice by the Pahwas now matters, that is a matter between them and their agent.
- The alleged non-receipt of the RTA notice leads to this submission:
[The notice] was not in evidence ... at the time of the hearing although it is a prerequisite to such hearing taking place ... Procedurally the notice is important because it was issued by the RTA on the basis that the dispute was, in its opinion, unsuitable for conciliation (as the [Pahwas] have recently found out through their enquiries with the RTA – see sections 399 and 403 of the Residential Tenancies and Rooming Accommodation Act 2008) and this resulted in the matter proceeding direct to the Tribunal ... without any conciliation (or through QCAT without any case management, opportunity for compulsory conferencing or directions).
- Section 399 of the RTA merely confirms that the Authority may refuse to intervene if it considers that the dispute is unsuitable for conciliation. Section 403 of the RTA is to the same effect. As we have already seen, the Authority washed its hands of this case. More to the point is section 416, which provides that an applicant under the RTA must make a dispute resolution request to the RTA before resorting to the Tribunal.
- On 14 March 2017 the registry directed the Averys to file a ‘Notice of unresolved dispute’. Evidently the Averys complied, and the learned Adjudicator found as a fact that the section 416 precondition was satisfied. Considering that the RTA’s refusal to conciliate was issued in November 2016 it is apparent that an application to the RTA was made well before this action was commenced on 10 March 2017.
- There is no substance in the first submission of fresh evidence. It is rejected.
Should ‘retrospective’ quantum evidence be admitted?
- The second ground of the fresh evidence application is that a ‘retrospective’ report of a business known as Asset Valuations Group (‘AVG’) dated 14 March 2019 indicates that the Tribunal’s award of $55,623 is grossly excessive. According to AVG the ‘second hand market value of the Averys’ subject assets, as at the date on which the damage occurred, was $6,110, while the ‘second hand in situ market value’ was $8,690.
- Understandably, after a lapse of more than two years, AVG’s assessment is not based on physical inspection of the subject property:
There was no inspection and the Valuation has been based solely on limited photos and a listing of assets supplied as well as the listing of new assets listed in the QCAT application for minor civil dispute ... and associated documentation supplied by Mr and Mrs Pahwa.
- There is no explanation of the omission to produce a similar valuation at or before the hearing on 3 October 2018, or, preferably, as soon as the possibility of a dispute arose. Instead, the Pahwas prepared little or nothing on the quantum issue, although the Averys provided them with full particulars of their valuations in the original application. Indeed, there is no evidence that the Averys would have refused AVG access to the subject property, had an appropriate request been made. AVG could then have been given the same, if not much better information than was available to it in March 2019. However, at the trial, the Pahwas denied liability outright, and made no effort to come to grips with the Averys’ estimates of quantum.
- This is a classic case of presenting as ‘fresh evidence’ material that could, with due diligence, have been tendered at the trial. The application for leave to adduce the AVG report at this stage must be refused.
Is the substantive decision appellable?
- The substantive grounds of proposed appeal are as follows:
- (a)erroneous and excessive assessment of the compensation payable by relying on the evidence adduced by the Averys, and by failing to give the appellants an opportunity to consider that evidence; and
- (b)acting on insufficient evidence of the value of property damaged or destroyed.
- As already noted, the Averys gave full particulars of their claim. It was then, if not at the first foreshadowing of a dispute, that the Pahwas should have prepared to meet that claim. Instead, Suresh Pawha chose to adopt an attitude of intransigent denial of his opponents’ account, conceding nothing, and offering no valuation evidence of his own. It is not a sufficient defence to brand an opposing witness a liar, and one scarcely advances one’s case by broadly hinting, without candidly submitting, that the tribunal – which, in the Pahwas’ favour, had already rejected a considerable part of the Averys claim - was biased. It is not unlikely that the Pahwas’ less than diligent preparation of their case was due to the male appellant’s invincible assumption that ‘the whole thing is a racket’. The trial is not a mere practice run. The time for adducing the AVG evidence was then, not now.
- No doubt the only available evidence of quantum could have been improved, but a court or tribunal – particularly one without professional assistance, and bound to proceed economically, informally and speedily – must make the best of what is presented to it. There was evidence of the Averys that the Adjudicator, as judge of fact and credit, was entitled to act upon. There is no appellable error in her finding that in breach of section 185 of the RTA, the Pahwas failed to ensure that the premises and inclusions (particularly the drains and aged water heater) were maintained in good repair. And in the absence of any constructive evidence of quantum on the Pahwas’ part, the Adjudicator was entitled to accept the Averys’ estimated values.
- An application for leave to appeal is not an opportunity to re-run the trial, or to ‘second guess’ the primary judge. The very reason for the need to obtain leave to appeal is that decisions in cases of this kind are normally meant to be final. Indeed, at all levels of adjudication, findings of fact are seldom set aside. Before that is done, it must be shown that the decision in question is ‘glaringly improbable’ or contrary to compelling evidence. That cannot reasonably be said in this case. Clearly there was evidence upon which the findings in question could be reached. Even when there are two reasonable views, a preference for one view over the other is not an appellable error.
- There are no reasonable prospects of a successful appeal. The application for leave must be dismissed.
- The application to adduce new evidence is refused.
- The application for leave to appeal is refused.
- No order as to costs.
 Leave is a prerequisite in cases of the present kind: QCAT Act s 142(3)(a)(i).
 ‘Prescribed amount’, as defined in Schedule 3 to the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
 RTA s 516(4); Avery & Ors v Pahwa & Anor  QCATA 53.
 Transcript of hearing 3 October 2018 (hereinafter ‘T’) page 73 line 35.
 Averys’ submissions filed 1 July 2019 paragraphs 13-16.
 QCAT Act s 143(3).
 A transcript or audio recording suffices: QCAT Act s 123.
 QCAT Act s 143(5)(c).
 QCAT Act s 143(5)(b).
 When the Pahwas were present and heard the decision given.
 Averys’ submissions filed 1 July 2019 paragraph 15.
 Email QCAT Transcripts (J Zordan) to Case Manager 24 April 2019.
 See Acts Interpretation A ct 1954 (Qld) s 39A(1)(b).
 The discrepancy, if any, is slight. The Tribunal may extend time on its own initiative: QCAT Act s 61(4).
 Application for leave to rely on fresh evidence, filed by Pahwas on 4 April 2019.
McDonald v McDonald (1965) 113 CLR 529 at 532 per Barwick CJ; Harrison & Anor v Schipp & Ors (2002) 54 NSWLR 612 at .
 Autodesk Inc v Dyason (No 2)(1993) 176 CLR 300 at 310 per Brennan J.
 T page 11 lines 39-41, page 12 line 1 (identifying ‘the agent’ as a Mr Keyes).
 In view of the male appellant’s attitude to the proceedings - ‘just a racket’ it seems most unlikely that a reconciliation conference would have been fruitful. See paragraph .
Warwick Real Estate & Property Sales Pty Ltd v Bailey & Morrow  QCATA 262 at ; Green v Hatchy Investments Pty Ltd  QCATA 274 at .
 T page 74 lines 27-28.
 AVG’s report 14 March 2019 page 6 of 44.
 AVG report page 6 Part D paragraph 7.
 T page 63 lines 36-39: Adjudicator: ‘Do you concede that you should be liable for anything towards the Avery family?’ Pahwa: ‘No, not at all’..
 T page 60 line 24: ‘And he’s a liar, and I’m not. That’s the whole problem’.
 T page 59 lines 40-41: ‘I already know you’re really listening to them and ignoring us’.
 T page 65 line 19.
 QCAT Act ss 3 and 4.
 T page 73 lines 40-46.
 Fox v Percy (2003) 214 CLR 118 at -; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178-179.
Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at .
- Published Case Name:
Suresh Pahwa and Lynette Pahwa v Peter John Avery, Jill Leslie Avery and Benjamin John Avery
- Shortened Case Name:
Pahwa v Avery
 QCATA 153
13 Nov 2019