Crouch & Crouch Pty Ltd t/a Ray White Sherwood v Leadbitter
[2022] QCATA 63
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- Crouch & Crouch Pty Ltd t/a Ray White Sherwood v Leadbitter[2022] QCATA 63
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Crouch & Crouch Pty Ltd t/a Ray White Sherwood v Leadbitter[2022] QCATA 63
Crouch & Crouch Pty Ltd t/a Ray White Sherwood v Leadbitter[2022] QCATA 63
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION | Crouch & Crouch Pty Ltd t/a Ray White Sherwood v Leadbitter [2022] QCATA 63 |
PARTIES: | crouch & crouch pty ltd t/a ray white sherwood |
(applicant) | |
v | |
michael leadbitter | |
(respondent) | |
APPLICATION NO: | APL326-21 |
MATTER TYPE: | Residential tenancy matters |
DELIVERED ON: | 12 May 2022 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Dr J R Forbes |
ORDERS: | The application for leave to appeal is dismissed. |
CATCHWORDS: | APPEAL – APPLICATION FOR LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY DISPUTE – where claim to compensation by tenant – where furniture damaged by removal – whether evidence of damage sufficient – where nature and purpose of application for leave misconceived – whether an appellable error shown – where application for leave dismissed Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” (1976) 136 CLR 529; [1976] HCA 65 Coulton v Holcombe (1986) 162 CLR 1 Devries v Australian National Railways Commission (1993) 177 CLR 472 F V Rentals t/a Forbes Realty Rentals v Anderson [2014] QCATA 181 Fox v Percy (2003) 214 CLR 118 Myers v Medical Practitioners Board (2007) 18 VR 48 Police v Kyriacou (2009) 103 SASR 243; [2009] SASC 66 QUYD Pty Ltd v Marvass [2009] 1 Qd R 41 Reihana v Beenleigh Show Society [2019] QCATA 91 Robinson v Cox [2011] QCATA 302 Sali v SPC Limited (1993) 67 ALJR 841 Secretary to the Department of Premier and Cabinet v Hulls [1999]3 VR 331 The Pot Man Pty Ltd v Reaoch [2011] QCATA 318 |
APPEARANCES & REPRESENTATION: | 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
Introduction
- [1]The respondent (`Leadbitter’) at the material times was lessee of residential premises at Graceville, Brisbane (`the premises’). The applicant (`Ray White’) was the managing agent of the property.
- [2]On 26 October 2020 Ray White notified Leadbitter that the lessor intended to sell the premises, and Leadbitter was preparing to move out. Neither fact is the subject of this dispute.
- [3]The action is a claim for compensation for damage to Leadbitter’s furniture, principally a refrigerator, a sofa and a television cabinet. The damage occurred when those items were being moved, allegedly without Leadbitter’s consent, to storage underneath the house. Presumably that was to allow promotional photographs to be taken of temporarily decorated rooms in aid of the sale.
- [4]On 22 April 2021 Leadbitter filed an application seeking a total of $2,444 in damages. The trial took place on 22 October 2021, when the Tribunal ordered Ray White to pay Leadbitter the sum of $1,007.40.
- [5]
We would like the awarded damages to be considered with more information provided. The tenant only provided six black and white photos of their [sic] damaged furniture. No proof of purchase, information regarding the age or depreciation seems to have been considered. ... We would like for [sic] the decision to be set aside and return the matter to QCAT to be reconsidered.
- [6]There follows a highly detailed list of seven bundles of material that `we would like the tenant to provide’.
- [7]Leadbitter freely conceded that none of the damaged items was new or near-new. He estimated that the refrigerator, brought by his partner from England, was about seven years old, the TV cabinet about five, and the sofa approximately seven or eight years of age.[2]
- [8]Ray White’s representative did not cross-examine upon that evidence, or upon any of the afterthoughts in the sevenfold list in the application for leave.
- [9]Our courts are adversarial, not investigative. Civil disputes deal with reasonable probabilities, not scientific certainties. In cases far more important than this one, the courts recognise that they must do their best with the material that the parties choose, or are able to place before them.[3] Plainly and reasonably the adjudicator took the view that it would be unrealistic to expect a peripatetic tenant to retain receipts for household items purchased five, seven or eight years earlier, particularly in the absence of cross-examination or contrary evidence. The suggestion that there should be photographs of that vintage strains probability still more.
- [10]It should be carefully noted that the adjudicator applied substantial discounts for age and wear and tear. The refrigerator and sofa were discounted by 80% and the TV cabinet by 70%.[4]
- [11]The essential contents of the application for leave may be described, without risk of hyperbole, as quite unusual. Effectively the appeal tribunal is asked to issue a post-trial summons for copious information, and then to retry the case in the light of a fishing expedition. That approach is far removed from nature and purpose of an application for leave to appeal.
- [12]An application of the present kind is not an opportunity to conduct a trial de novo, or to introduce evidence or arguments that might have been offered at the trial, but were not. As the High Court has said, the trial is not a `preliminary skirmish’[5], after which a disappointed party may reagitate the already decided issues, and perhaps some more.
- [13]The proper purpose of a leave application is to see whether there is any arguable error of law in the proceedings and decision below.[6] It is not nearly enough for an applicant to express disappointment, or to cherish a subjective feeling that justice has not been done.[7] Findings of fact and credit are the prerogative of the trial judge; that is his or her function[8], and an appeal court will seldom interfere.[9] The very requirement to obtain leave is designed to curb attempts to revisit the merits, and to support the value of finality in litigation. Finality in litigation is a vital consideration[10] particularly in tribunals such as QCAT.[11] This is precisely the kind of dispute the legislators wish to see resolved speedily, economically, and with finality.
- [14]The applicant Ray White has not demonstrated any appellable error in the subject decision, and I discern none. The application must be dismissed.
ORDER
The application for leave to appeal is dismissed
Footnotes
[1] Application for leave to appeal filed 24 November 2021.
[2] Transcript of trial 22 October 2021 (`T’) page 6 lines 15, 34, 38.
[3]Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” (1976) 136 CLR 529 at 582-583; [1976] HCA 65; Police v Kyriacou (2009) 103 SASR 243; [2009] SASC 66 at [4].
[4] T page 19 lines 13-23.
[5]Coulton v Holcombe (1986) 162 CLR 1 at 7; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151.
[6]F V Rentals t/a Forbes Realty Rentals v Anderson [2014] QCATA 181 at [4] per Thomas J; Secretary to the Department of Premier and Cabinet v Hulls [1999]3 VR 331 at [9]; QUYD Pty Ltd v Marvass [2009] 1 Qd R 41 at [6].
[7]Robinson v Cox [2011] QCATA 302 at [7].
[8]Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151; Myers v Medical Practitioners Board (2007) 18 VR 48 at [53].
[9]Fox v Percy (2003) 214 CLR 118 at 125-126; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479.
[10]Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 217; Sali v SPC Limited (1993) 67 ALJR 841 at 843-844; Reihana v Beenleigh Show Society [2019] QCATA 91 at [25].
[11]The Pot Man Pty Ltd v Reaoch [2011] QCATA 318 at [8] and [10].