Mataitini v North Shore Realty Sunshine Coast
[2020] QCATA 154
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- Unreported Judgment
- Mataitini v North Shore Realty Sunshine Coast[2020] QCATA 154
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Mataitini v North Shore Realty Sunshine Coast[2020] QCATA 154
Mataitini v North Shore Realty Sunshine Coast[2020] QCATA 154
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Mataitini v North Shore Realty Sunshine Coast [2020] QCATA 154 |
PARTIES: | TAHIRIH MATAITINI (Applicant) v NORTH SHORE REALTY sunshine coast (Respondent) |
APPLICATION NO: | APL312-19 |
ORIGINATING APPLICATION NO: | MCDT 280 of 2019 Maroochydore |
MATTER TYPE: | Appeals |
DELIVERED ON: | 26 October 2020 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Dr J R Forbes, Member |
ORDER MADE: | The application for leave to appeal is dismissed. |
CATCHWORDS: | APPEAL – APPLICATION FOR LEAVE TO APPEAL – residential tenancy dispute – where action for arrears of rent and for compensation to remedy damage to premises – where application prima facie out of time – where pre-hearing direction extends time – where trial proceeds in absence of respondent tenant - where nature and limitations of leave to appeal applications explained –- where no arguable appellable error shown – where application for leave to appeal dismissed Acts Interpretation Act 1954 (Qld) s 39A Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 57, s 92, s 143 Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 39 Coulton v Holcombe (1986) 162 CLR 1 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Fox v Percy (2003) 214 CLR 118 Robinson v Corr [2011] QCATA 302 |
APPEARANCES & REPRESENTATION: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). |
REASONS FOR DECISION
- [1]On 6 July 2018 Ms Matailini (`the Applicant’) leased residential premises at Marcoola, owned by Mr and Mrs Petherick, under an agreement governed by the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (`RTA’).
- [2]The leasing agent was North Shore Realty Sunshine Coast (`North’), which has locus standi by virtue of that agreement.[1]
- [3]The lease was due to end on 5 July 2020, but by request of the Applicant it was terminated on or about 19 August 2019.
- [4]On 16 September 2019 North commenced these proceedings as a minor civil dispute, alleging non-payment of rent and seeking compensation for damage to the premises. $438.57 was claimed for rent and $610 for cleaning and repairs.
- [5]The Applicant did not appear at the hearing, but on that morning she contacted the court and advised that she would not attend because her children were ill and there was only herself to look after them. The Adjudicator regarded that excuse, unsupported by any medical or other independent evidence, as inadequate, and the hearing proceeded.[2]
- [6]A reserved decision was given on 11 October 2019 and the registry posted notices of it to the parties on the same day.[3] It was decided that, out of Applicant’s bond of $1,200, the Residential Tenancies Authority would pay $1,038.57 to North’s clients, and the balance of $161.43 to the Applicant.
- [7]On 30 October 2019 the Applicant sought a reopening. That motion was dismissed on 8 November 2019.
A question of time
- [8]
- [9]
The application for leave to appeal ... filed on 18 November 2019 is to be treated as an application ... filed in respect of the decision dated 11 October 2019 in MCDT290-19 in Maroochydore.
- [10]While the intent of this direction is, perhaps, not entirely clear, I shall take it as granting an extension of time to the actual date of filing. I now turn to the substance of the application.
Nature and limits of leave applications
- [11]The proper purpose of an application for leave to appeal is to determine whether the would-be appellant has a reasonable prospect of succeeding on appeal. Has she identified a reasonably arguable legal error, such as a mistake or misapplication of law, a decision for which there is no evidence, or one based on an irrelevant consideration?
- [12]An application for leave is not an occasion to re-try the case presented at trial, as if the latter were a mere `preliminary skirmish’.[7] Assessments of the relative weight of competing evidence are seldom disturbed.[8] Fact-finding and the weight of evidence are matters for the trial judge. The mere fact that a party disagrees or is disappointed with a finding of fact is not a ground of appeal.
- [13]It is not legal error to prefer one version of the facts to another, or to give less weight to one party’s case than he or she thinks it deserves. There is no appellable error in making a decision with which other reasonable minds may differ. Findings will not be disturbed where they have rational support in the evidence, even if another reasonable view is available.[9]
If there is evidence, or if there are available inferences which compete for the judge’s acceptance, no error of law occurs simply because the judge prefers one version of evidence to another or one set of inferences to another. This is his function. ... Even if the evidence is strongly one way the Appeal Court may not intervene simply because it reaches a different conclusion and this even if it regards the conclusion of the trial judge against the weight of evidence.[10]
- [14]An application for leave is not an occasion to repeat or to reargue evidence rejected by the trial judge, or to present material that could have been led at first instance, but was not. It is not nearly enough for an applicant to express disappointment, or to entertain a subjective feeling that justice has not been done.[11]
Grounds of appeal and resolution
- [15]The Applicant seeks leave to appeal on these grounds –
- (i)That the landlord’s loss of rent was `due in part to [North] rejecting [its] responsibilities to seek a tenant when notice was given’.
- (ii)The entry condition report shows that the property was returned in `equal condition’.
- (i)
- [16]The excuse for non-appearance relied on in the reopening application is not mentioned in the application for leave. There is no natural justice ground.
Ground (i)
- [17]The allegation that the agent delayed re-letting was not raised at the trial. But in any event North’s witness testified and the Tribunal accepted that a new tenant was found within 10 days.[12]
Ground (ii)
- [18]The condition of the premises when the Applicant left was hardly to be found in the entry report. However, the exit report lists numerous defects found by North, without any responses by the Applicant. In effect, Ground (ii) is a bare rejection of the tribunal’s findings. However, there is ample photographic and other evidence to support them.[13]
- [19]Repairs were needed, as the tribunal found, and the rent claim of $428 represents less than two weeks’ rent.[14] That hardly suggests inactivity on North’s part.
- [20]This application is nothing more than a disagreement with the findings of the Tribunal, and as a request for leave to appeal it is conspicuously lacking in substance. Accordingly it must be dismissed.
ORDER
The application for leave to appeal is dismissed.
Footnotes
[1]RTA Form 18a clause 43(2): `the agent may ... stand in the lessor’s place in any application to a tribunal by the lessor or the tenant’.
[2]In reliance on QCAT Act s 57(1)(b), s 92(1)(b).
[3]As to service by post see QCAT Rules r 39(1)(b) and Acts Interpretation Act 1954 (Qld) s 39A.
[4]QCAT Act s 143 (3).
[5]See affidavit of service by registrar, Maroochydore, sworn 11 October 2019 paragraph 3.
[6]Paragraph 1.
[7]Coulton v Holcombe (1986) 162 CLR 1 at 7.
[8]Fox v Percy (2003) 214 CLR 118 at 127.
[9]Fox v Percy (2003) 214 CLR 118 at 125-126.
[10]Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151.
[11]Robinson v Corr [2011] QCATA 302 at [7].
[12]T page 6 line 20.
[13]T page 9 lines 2-11 and exhibits tendered by North.
[14]Rent was $270 per week: tenancy agreement Part 1 Item 7.