Greg Ritchie v Harcourts Broadbeach/Mermaid Waters
[2024] QCATA 15
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- Unreported Judgment
- Greg Ritchie v Harcourts Broadbeach/Mermaid Waters[2024] QCATA 15
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Greg Ritchie v Harcourts Broadbeach/Mermaid Waters[2024] QCATA 15
Greg Ritchie v Harcourts Broadbeach/Mermaid Waters[2024] QCATA 15
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Greg Ritchie v Harcourts Broadbeach/Mermaid Waters [2024] QCATA 15 |
PARTIES: | GREG RITCHIE (appellant) v HARCOURTS BROADBEACH/MERMAID WATERS (respondent) |
APPLICATION NO: | APL226-22 |
ORIGINATING APPLICATION NO: | MCDT496 of 2022 |
MATTER TYPE: | Appeal |
DELIVERED ON: | 15 February 2024 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member PG Stilgoe OAM |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where respondent sought to enforce a form 12 (notice to leave) – where appellant claimed they had been tricked into signing a shorter lease – where tribunal had requested the appellant to point to evidence supporting their claim – where appellant failed to adduce supporting evidence – where leave to appeal required – whether appellant was should be granted leave to appeal. APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – IN GENERAL – where fresh evidence filed with application for leave to appeal – where fresh evidence could have been obtained for use at hearing – whether the applicant should be granted leave to adduce fresh evidence. Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 329(j). Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(b), s 28(3)(c), s 28(4), s 142(3)(a)(i). Australian Broadcasting Commission v Bond (1990) 170 CLR 321 Brisbane City Council v Mainsel Investments Pty Ltd [1989] 2 Qd R 204 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Pickering v McArthur [2005] QCA 294 Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679 Terera & Anor v Clifford [2017] QCA 181 Waterford v The Commonwealth (1987) 163 CLR 54 |
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
- [1]In July 2021, Greg Ritchie signed a six-month fixed term tenancy agreement for a property in Broadbeach Waters.
- [2]In January 2022, the fixed term tenancy expired and lapsed into a periodic tenancy. Shortly after, Harcourts Broadbeach/Mermaid Waters, through its agent Steven Kowaltzke, issued Mr Ritchie with a Notice to Leave (Form 12) without grounds, providing two months’ notice for the required handover date.[1]
- [3]Mr Ritchie did not vacate the property on the date required, prompting Harcourts to apply to the Tribunal for the termination of the tenancy agreement and a warrant of possession.
- [4]The learned Adjudicator found in Harcourts’ favour, and made orders terminating the tenancy, and issuing a warrant of possession against the property.
- [5]Despite some procedural delays which are not relevant to this appeal, Harcourts eventually repossessed the property. Mr Ritchie has not lived at the property since August 2022.
- [6]Mr Ritchie now wishes to appeal the tribunal’s decision. He takes issue with what he claims was an error by the learned Adjudicator through:
- Finding that he was not tricked into signing a shorter lease; and
- The unfair acceptance of evidence from Mr Kowaltzke without prior notice to him.
- [7]Because the appeal arises from the tribunal’s minor civil disputes jurisdiction, leave of the tribunal is required.[2] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[3]
- [8]Mr Ritchie has also provided the appeal tribunal with an email from the joint-owner of the property with Mr Samuels, which attached an unsigned ‘draft rental agreement’ dated for a 12-month tenancy.
- [9]Ordinarily, an applicant for leave to adduce new evidence must satisfy each of the following tests:
- The evidence could not have been obtained with reasonable diligence for use at the trial;
- The evidence, if allowed, would probably have an important impact on the result of the case (although it need not be demonstrated that it would be decisive); and
- That the evidence is credible though it need not be incontrovertible[4].
- [10]During the hearing, Mr Ritchie referred to the relevant email, but did not explain why it had not been filed with his other evidence.[5] He has not since provided any reason why it could not be obtained and filed.
- [11]Leave to file the evidence cannot be granted and the application for leave to appeal must proceed on the evidence before the learned Adjudicator.
Did the tribunal err in its findings?
- [12]The original hearing concerned the enforcement of a Notice to Leave (Form 12). Mr Ritchie did not apply to set aside the Form 12 Notice and was otherwise prevented from doing so due statutory time limits.
- [13]Mr Ritchie instead argued that the property’s owner, Steven Samuels, had ‘tricked’[6] him into signing a six-month lease when he had believed to be signing a 12-month lease. The Tribunal did not accept this argument.
- [14]
- [15]There is no error of law simply in making a wrong finding of fact unless there is no evidence to support that finding[9]. The only evidence produced by Mr Ritchie to support his position was a 12-month tenancy agreement signed by Mr Ritchie, but not Mr Samuels.
- [16]From the evidence available, or lack thereof, it was open to the learned Adjudicator to conclude that Mr Ritchie was not tricked into signing a shorter lease. There was no evidence before the tribunal of a corroborative nature which would support Mr Ritchie’s position. Nothing within the material available to me would support a contrary inference being drawn.
Was the acceptance of Mr Kowaltzke’s evidence unfair?
- [17]Mr Ritchie argues that the tribunal unfairly allowed Mr Kowaltzke to submit a 71-page document for the learned Adjudicator’s consideration.
- [18]The document appears to have been written in response to evidence filed by Mr Ritchie the day before the hearing[10], and is, among other things, made up of bank statements, the relevant lease agreements, and parties’ correspondence.
- [19]
- [20]
- [21]If Mr Ritchie felt that he was unable to fairly consider the entire document, he did not raise the point when given the opportunity. Mr Ritchie, presumably, had access to all these documents before the hearing and none of them should have been a surprise to him. No error was made by the learned Adjudicator in allowing Mr Kowaltzke to introduce the document as supporting evidence.
Correction of a substantial injustice?
- [22]Without an error by the Tribunal, it cannot be said that a substantial injustice has occurred.
- [23]Mr Ritchie has not resided at the property for approximately 17 months. Even if the relief sought by Mr Ritchie were ordered, there are no reasonable prospects of it having a substantive effect.
Conclusion
- [24]Mr Ritchie has not demonstrated a reasonably arguable case that the tribunal was in error, nor that there was a substantial injustice in need of correction. Leave to appeal should be refused.
Order
1. Leave to appeal is refused.
Footnotes
[1] Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 329(j).
[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3)(a)(i).
[3] Pickering v McArthur [2005] QCA 294, [3]; Terera & Anor v Clifford [2017] QCA 181, [10].
[4] Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408; Brisbane City Council v Mainsel Investments Pty Ltd [1989] 2 Qd R 204, 215.
[5] T1-19, 31.
[6] T1-14, 33.
[7] Dearman v Dearman (1908) 7 CLR 549, 561; Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679, 697.
[8] Fox v Percy (2003) 214 CLR 118, 128.
[9] Waterford v The Commonwealth (1987) 163 CLR 54 [77]; Australian Broadcasting Commission v Bond (1990) 170 CLR 321 [341].
[10] T1-4, 1-3.
[11] T1-4, 12-13.
[12] T1-5, 9.
[13] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28(3)(b).
[14] Ibid s 28(3)(c)
[15] Ibid s 28(4).