Pedersen v Bradshaw
[2021] QCATA 102
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- Pedersen v Bradshaw[2021] QCATA 102
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Pedersen v Bradshaw[2021] QCATA 102
Pedersen v Bradshaw[2021] QCATA 102
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Pedersen v Bradshaw & Anor [2021] QCATA 102 |
PARTIES: | MELISSA RITA MONICA PEDERSEN (appellant) v JACK BRADSHAW KEALEY THOMAS (respondents) |
APPLICATION NO/S: | APL342-20 |
ORIGINATING APPLICATION NO/S: | MCDT00013/20 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 12 August 2021 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Hughes |
ORDERS: | Leave to appeal refused. |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – interference with findings of Tribunal below – functions of appellate tribunal – where no valid ground of appeal raised – where findings open on evidence Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28 Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 94, s 185, s 206, s 419, s 420 Carney & Ors v Home Rentals Queensland [2020] QCATA 119 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Fox v Percy (2003) 214 CLR 118 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Piric & Anor v Claudia Tiller Holdings Pty Ltd [2012] QCATA 152 SGB Facility Services Pty Ltd & Anor v Zoo Agency Pty Ltd [2021] QCATA 77 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondents: | Self-represented |
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
- [1]Leave to appeal will not be granted where a party simply desires to re-argue the case on existing or additional evidence.[1] The purpose of seeking leave to appeal is to curb attempts to misuse appeals as retrials.[2] An appeal is not a rehearing on the merits,[3] nor an opportunity to ‘second guess’ the findings of the learned Adjudicator.[4]
- [2]Melissa Pedersen did not articulate grounds of appeal. Instead, she filed documents with handwritten notes, rearguing findings of fact.[5] She did not identify fresh evidence. Even if admitted,[6] it is not an appellable error to prefer the tenants’ evidence over other evidence. The appeal process is not an opportunity for a party to again present their case.[7] It is the means to correct error.[8]
- [3]The learned Adjudicator ordered Ms Pedersen pay $12,595.00 for failing to ensure the premises were fit to live in, safe and in good repair.[9] Findings of fact with rational support in the evidence will not be disturbed.[10] The findings were open on expert evidence, the tenants’ oral evidence and admissions made by the agent under oath.[11] The Tribunal does not have pleadings.[12] Although the tenants’ application referred to “rent reduction”,[13] the evidence was capable of supporting a claim for compensation.[14] There is no reasonably arguable case of error. Leave to appeal is refused.
Footnotes
[1] Piric & Anor v Claudia Tiller Holdings Pty Ltd [2012] QCATA 152, [12] (Wilson J).
[2] SGB Facility Services Pty Ltd & Anor v Zoo Agency Pty Ltd [2021] QCATA 77, [26].
[3] A lessor’s agent stands in the place of the lessor for the proceeding: Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 206(3); General tenancy agreement dated 28 September 2019, item 3, clause 43.
[4] SGB Facility Services Pty Ltd & Anor v Zoo Agency Pty Ltd [2021] QCATA 77, [25].
[5] Application for leave to appeal or appeal dated 5 November 2020.
[6] Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408.
[7] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580.
[8] Ibid.
[9] Transcript page 1-23, lines 10 to 25; Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 185(2), s 419, s 420.
[10] Fox v Percy (2003) 214 CLR 118, 125-6.
[11] Transcript page 1-7, lines 42 to 43; page 1-10, lines 46 to 47; page 1-11, lines 1, 12 to 18; page 1-12, lines 8 to 28; page 1-13, lines 1 to 47; page 1-14, lines 1 to 45; page 1-15, lines 1 to 47; page 1-21, lines 3 to 24; page 1-22, lines 27 to 28; 45 to 47; page 1-23, lines 1 to 5.
[12] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3).
[13] Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 94.
[14] Carney & Ors v Home Rentals Queensland [2020] QCATA 119, [18].