Whiteman v Yates[2024] QCATA 26

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Katrina Whiteman (the Applicant) has applied for leave to appeal or appeal from the decision of the Tribunal made by an Adjudicator on 20 May 2022 awarding $7579.41 claimed by the Applicant’s former tenant, Andrea Danjelo Yates.
2. [2]
   The grounds relied upon by the Applicant are that she was not made aware or notified of the claim by Andrea Daniella Yates (the Respondent).

Background Facts

3. [3]
   The Applicant is the registered proprietor of a residential unit at 2 Marina Promenade, Paradise Point on the Gold Coast. The Applicant says that this was a “brand-new unit”.
4. [4]
   The Applicant leased the residential unit to the Respondent for a fixed term from 29 July 2021 to 29 July 2022. The parties signed a general tenancy agreement which specified that the address of the Applicant was follows;

C/-Mian Prestige Real Estate, T/as Ray White Runaway Bay, 1/445 Oxley Drive, Runaway Bay, Queensland, 4216.

5. [5]
   The general tenancy agreement provided for the phone, mobile and email address of the Applicant which appears to be that of Ray White Runaway Bay rather than her own. That agreement specified that notices could be given to the Applicant by email, but not by facsimile transmission, to the following email address;

[email protected]

6. [6]
   On 29 July 2021 the Respondent and her family took possession of and occupied the residential unit. A bond of $10,000 was paid.
7. [7]
   On 13 September 2021 the Respondent reported a broken refrigerator requiring maintenance to Ray White Runaway Bay. A number of emails were then exchanged between the Respondent and that real estate agent about the repairs to the refrigerator.
8. [8]
   On 23^rd of September 2021 the Respondent sent an email to Ray White Runaway Bay requesting a mutual termination of the lease citing financial hardship from the failure to repair the refrigerator and safety concerns regarding an elevator.
9. [9]
   Following an exchange of further email correspondence on Monday, 11 October 2021 Amanda Blake of Ray White Runaway Bay advised the Respondent that;

Please be advised that the owner has accepted your request to be released from your tenancy with no penalties on or after 22 October 2021.

10. [10]
    On 28 October 2021 the Respondent vacated the residential unit and returned the keys to Ray White Runaway Bay.
11. [11]
    Further email exchanges were then made about the repayment of bond money. Subsequently on 15 November 2021 Melissa Peeke of Ray White Runaway Bay advised the Respondent as follows;

Funds are to be released today being mid month.

You will see this funds overnight, you will have received an email this morning from our system to advise funds were paid, I can see this was sent on our system prior to 9:30 am this morning.

12. [12]
    On 14 February 2022 the Respondent sent an email to the Applicant giving notice of a claim against the Applicant relating to the occupation of the residential unit during the term of the agreement. The claim was for compensation of $9020.41 payable by the Applicant under various heads of claim including the refrigerator was not operating; removal costs, uber eats costs and NBN connection fee. The Respondent also advised that in default of a response within seven days, a claim would be lodged with QCAT.
13. [13]
    On 16 February 2022 the Applicant replied to the Respondent’s claim in an email stating;

I have forwarded this on to Ray White.

You know I was not aware of any problems you had with the fridge. It is working fine now. You asked to be released from your lease and I did not hesitate to allow you to break your lease.

If you are going to breach me, suggest you also breach Ray White, as I had no knowledge of the issues you were having with the fridge or the run in you had with the neighbours until I was notified verbally by Ray White and that you wanted to break your lease. I immediately told them under the circumstances I would allow you to break your lease.

I am waiting for a response from Ray White, will follow it up today.

14. [14]
    On Thursday, 24 February 2022 Melissa Peeke of Ray White Runaway Bay sent an email to the Respondent replying to the claim for rent reduction, removal costs, uber eat costs and NBN connection fees. Melissa Peeke said in that email;

I have received your email and have now looked into those items and cross referenced from the file. It has also been sometime since you vacated the property and as I am sure you are aware when applying to the RTA there is time constraints.

Melissa Peeke concluded by stating that “no offer of compensation is being made”.

15. [15]
    On 25 February 2022 the Respondent gave a Notice of Unresolvable Dispute to the Residential Tenancies Authority (RTA).
16. [16]
    On 2 March 2022 the RTA advised the Respondent the dispute with the Applicant was unsuitable for conciliation through the RTA’s dispute resolution process and an application can be lodged with the Queensland Civil and Administrative Tribunal for a decision.
17. [17]
    On 14 March 2022 the Respondent filed an Application for minor civil dispute – residential tenancy dispute in the Tribunal claiming $14,677.41 damages relating to the lease of the residential unit from the Applicant. That claim related to a reduction in rent, removal costs, takeaway food and NBN connection. The Application filed in the Tribunal stated the Applicants postal address and email address was at the offices of Ray White Runaway Bay.
18. [18]
    On 18 March 2022 the Tribunal gave a Notice of Hearing to the parties. The Notice to the Applicant was addressed to the Ray White Runaway Bay location and nominated 11.00 am on 21 April 2022 as the Hearing date.
19. [19]
    At 10:55 am on 21 April 2022 of the Administration Officer at the Southport District and Magistrates Court received a “phone call” from Ray White Runaway Bay advising that;^[1]

the respondent Katrina Whiteman has just rushed to the hospital and the company have asked to adjourn this matter.

20. [20]
    On 21 April 2022 the Delegate of the Principal Registrar of the Tribunal made an order to adjourn the proceedings to the first available hearing date.
21. [21]
    On 21 April 2022 the Tribunal sent a Notice of Hearing - By Telephone to the parties. The Notice to the Applicant was sent to her address at Ray White Runaway Bay. That Notice specified that the hearing would be conducted at 11.00 am on 20 May 2022 by telephone.

Hearing on 20 May 2022

22. [22]
    On 20 May 2022 these proceedings were heard by the Tribunal. Appearances were made by Ms Peeke of Ray White Runaway Bay on behalf of the Applicant and also by the Respondent. The Transcript of those proceedings records that the Adjudicator sought confirmation from the Respondent that her claim was against Katrina Whiteman, the owner of the property at unit 8, 2 Marina Promenade, Paradise Point. The Adjudicator then said:^[2]

So the first question, Ms Peeke, is whether Mian Prestige Real Estate, trading as Ray White Runaway Bay, have authority to represent Ms Whiteman, the owner and if you have that authority are you’re wanting me to make an order giving you leave to represent the owner.

23. [23]
    Ms Peeke told the Adjudicator that:^[3]

So we were the agent for the owner during this tenancy.

So we have authority to act on her behalf in this claim.

24. [24]
    The Adjudicator then asked Ms Peeke whether she wished to represent Katrina Whiteman. Miss Peeke responded “Yes”.
25. [25]
    The Adjudicator asked the Respondent whether she had any objection to the making an order that Melissa Peeke, of Ray White Runaway Bay represent Ms Katrina Whiteman. The Respondent replied “No”.
26. [26]
    The Adjudicator then made an order that Melissa Peeke of Ray White Runaway Bay may represent Katrina Whiteman and then confirmed with Ms Peeke that the application in those proceedings was being opposed by Katrina Whiteman. Miss Peeke responded as follows:

So we don’t agree with the claim, no. There was obviously extenuating circumstances to this particular claim and I think there’s a lot of background that need to be included in the claim as to how the tenant’s gotten to the figures she has.

27. [27]
    The Adjudicator then made enquiries as to when Katrina Whiteman received the documents in the proceedings and also why no material had been filed opposing the Application. After further exchanges Ms Peeke said she was not wanting to rely on any documents in opposing the application.
28. [28]
    The Adjudicator then arranged for both parties to be “sworn in” and proceeded on the basis of evidence from the Respondent. At the conclusion of that evidence the Adjudicator said to Ms Peeke:^[4]

All right. So Miss Peeke, what’s the - what’s the defence; what’s the response?

29. [29]
    Ms Peeke was then given an opportunity to reply to the evidence about the repairs required to the refrigerator, the takeaway food costs, the injury caused by the lift/elevator, NBN connection fee and payment of rent between 4 October and 28 October 2021. At the conclusion of that evidence the Respondent was given an opportunity to reply. At the conclusion of the hearing of the parties, the Adjudicator said:^[5]

Well, thank you, parties. I think that covers all the issues. Unless there is anything else, I’ll make a decision and tell you why. Is there anything else.

Both the Respondent and Ms Peeke replied “No”.

30. [30]
    The Adjudicator then gave reasons for decisions and made an order that the Applicant pay the Respondent $7579.41.

The Applicant files an application to adjourn the Hearing

31. [31]
    On 31 May 2022 the Applicant filed in the Tribunal an Application for leave to appeal or appeal the decision made by the Adjudicator on 20 May 2022.
32. [32]
    On 8 June 2022 the Tribunal, in addition to other orders, directed the Applicant file by 15 July 2022 copies of all submissions detailing the alleged errors of fact or law made by the original decision maker and any submissions in support of the application for leave to appeal or appeal that she wished to rely upon. Corresponding directions were made for the filing of submissions by the Respondent. Further directions were made that if any party wants to rely upon additional evidence not before the Adjudicator then that party was to file in the Tribunal an application for leave to rely upon fresh evidence together with a copy of the fresh evidence and any such application would be heard and determined together with the application for leave to appeal.
33. [33]
    By 15 July 2022 the Applicant had not complied with the directions of 8 June 2022 to file submissions by 15 July 2022. The Tribunal on 15 July 2022 extended the time to 26 August 2022 for the Applicant to file those submissions. Corresponding extension of time was granted to the Respondent to file any submissions in reply.
34. [34]
    Notwithstanding the directions made by the Tribunal on 15 July 2022, the Applicant did not comply with those Tribunal directions to file submissions but did subsequently file submissions in the Tribunal on 29 August 2022 (The content of these submissions will be referred to below). The time for the Respondent to reply to those submissions was extended to 7 October 2022. The Applicant was given leave to appear at the oral hearing by telephone.
35. [35]
    On 29 March 2023 the Tribunal sent to the parties a Notice of Hearing advising that the application will be heard by the Tribunal at Level 10, 259 Queen Street, Brisbane at 1:30 pm on 9 May 2023. The Notice also advised the Applicant may attend by telephone but the Respondent is required to attend the hearing in person.
36. [36]
    On 18 April 2023 the Applicant filed in the Tribunal an Application for miscellaneous matters requesting an adjournment of the hearing on 9 May 2023. The reasons given for the adjournment was that the Applicant was to depart Australia on 9 May 2023 at 2:45 pm by Singapore Airlines and was to return to Australia on 15 June 2023 at 6:55 am on Singapore Airlines.
37. [37]
    On 21 April 2023 the Tribunal refused the Application for adjournment of the hearing for the application for leave to appeal or appeal and confirmed the listing of the Tribunal Hearing on 9 May 2023.

Leave to Appeal a decision of the Tribunal

38. [38]
    The Applicant requires the Tribunal’s leave to appeal because these proceedings are an appeal from a decision about a minor civil dispute. The Applicant does not have any automatic right of appeal to the Tribunal.^[6]
39. [39]
    In Benson v Ware the Tribunal considered an application for leave to appeal or appeal. Member Howard (which the Deputy President agreed) referred to the following considerations in respect of a grant of leave to appeal:^[7]

Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?

40. [40]
    In Pickering v MacArthur the Court of Appeal stated the requirements for the grant of leave to appeal:^[8]

Leave will usually be granted only where an appeal is necessary to correct a substantial injustice to the applicant, or there is a reasonable argument that there is an error to be corrected.

41. [41]
    More recently in Saxer v Hume the relevant tests to be satisfied for a grant of leave to appeal were stated as follows:^[9]

As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage. In deciding whether grounds for leave to appeal have been shown, it is relevant to consider that the proceeding was a minor civil dispute, and the obligation on the Tribunal was to make orders it considered to be fair and equitable to the parties to the proceedings in order to resolve the dispute.

The Hearing of the Application for Leave to Appeal or Appeal

42. [42]
    At the commencement of the Hearing on 9 May 2023 the Applicant was not present in the hearing Room or in attendance by telephone. The Applicant’s name was called in the foyer outside of the Hearing Room but there was no appearance. The Tribunal had evidence that the Applicant had notice of the hearing date and which notice was in accordance with s 92 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). The Applicant had sufficient time from 21 April 2022 to make alternative arrangements for her representation at the Tribunal Hearing in the event that she was unable to attend personally or by telephone. In the circumstances the Tribunal decided to proceed with the Hearing in the absence of the Applicant.^[10]
43. [43]
    The Hearing then proceeded on the basis that the only party present was the Respondent. However, the Tribunal made the Applicant’s material filed in the Tribunal (including the proceedings before the Adjudicator) an exhibit in these proceedings for the Application for leave to appeal or appeal. The result was that notwithstanding the non-appearance of the Applicant, the material filed by the Applicant was before the Tribunal on 9 May 2023.^[11]
44. [44]
    The Applicants submissions filed on 29 August 2022^[12] specifically related to the application for leave to appeal or appeal. The Applicant exhibited a number of documents which did not appear to be in evidence before the Adjudicator and would constitute fresh evidence. The Applicant did not file an application to rely on fresh evidence in these proceedings and accordingly the Tribunal will not have regard to any fresh evidence filed by the Applicant. However, other documents exhibited were relevant to the proceedings in particular document “KJW-3” relating to the listing of reasons that the appeal should be granted.
45. [45]
    The document “KW-3” states the reasons that leave to appeal or appeal should be granted. It refers to the following issues:

    1. the Applicant was not given notice of the hearing on 20 May 2022 by personal service or otherwise;
    2. as the proceedings were not served on the Applicant, the Tribunal did not have jurisdiction to make the orders on 21 April 2022 or 20 May 2022. Accordingly, the decision should be set aside in its entirety for want of jurisdiction;
    3. Ms Peeke had no authority, actual or otherwise, to represent the Applicant at the hearing of the matter.
    4. In these circumstances the Applicant was denied procedural fairness or natural justice in the hearing and determination of the matter;
    5. There were errors of fact (as per KJW-6) and law causing the Adjudicator to find the premises were not fit to live in under s 185 of the Residential Tenancies and Rooming Accommodation Act 2008 (RTA Act);
    6. the award of compensation should have been considerably less having regard to a number of factors.

In the circumstances it was submitted by the Applicant that the Tribunal did not have jurisdiction and there was a gross denial of procedural fairness or natural justice with clear errors of fact and law requiring that leave to appeal to be granted and the decision below quashed with costs.

Did the Applicant Have Notice of the Proceedings Before the Adjudicator?

46. [46]
    The Applicant contends that the proceedings before the Adjudicator should not have proceeded as there was no personal service or otherwise on the Applicant of the proceedings. It also appears that the submission is also taken to include the contention the Applicant had no notice of the Hearing date before the Adjudicator.
47. [47]
    The evidence before the Tribunal relating to the address of the Applicant or the location at which notices could be sent to her is contained in the General Tenancy Agreement for the rental of the residential unit to the Respondent. In that General Tenancy Agreement the Applicant specified:

    1. her address as C/- Mian Prestige Real Estate, t/as Ray White Runaway Bay, 445 Oxley Drive, Runaway Bay;
    2. that her telephone, mobile and email address were those of Ray White Runaway Bay;
    3. that any notice to be given to her was to be by email to the email address of Ray White Runaway Bay which was stated as [email protected]; and
    4. that any facsimile transmission notice could not be sent to her at Ray White Runaway Bay. No details by which a facsimile transmission could be sent to the Applicant was specified.
48. [48]
    The Applicant had notice from the Respondent on 14 February 2022 of a claim arising from the tenancy of the residential unit for an amount of $9020.41. That claim related to a rent reduction of 50% from the time the refrigerator became defective to the date when the tenancy was terminated by mutual consent. The claim also referred to removal costs items, Uber Eats costs and the NBN connection fee. The Respondent in effect had notified the Applicant of all of the relevant heads of claim for the amount of $9020.41. The Respondent also gave notice of her intention to lodge a claim with QCAT if no response was received within seven days but would prefer to keep the dialogue open and settle this between “ourselves”.
49. [49]
    The Applicant rejected any dialogue with the Respondent in her email reply of 16 February 2022 in which she informed the Respondent that:

I have forwarded this (the Respondent’s email of 14 February 2022) on to Ray White.

The Applicant concluded that email response by stating that she was waiting for a response from Ray White and will follow  up a response from Ray White today.

50. [50]
    This evidence demonstrates that insofar as any claims were made about the tenancy of the residential unit the Applicant was not going to be personally involved but was having her agent, Ray White Runaway Bay, deal with all of these matters on her behalf. Clearly the Applicant was not intending to be personally involved in any of these tenancy matters involving a former tenant. The evidence also demonstrates that the Respondent was entitled to rely upon the actions of the Applicant by having Ray White Runaway Bay deal with all tenancy matters including claims arising subsequently to the mutual termination of the tenancy.
51. [51]
    The evidence also demonstrates from the Applicants email response of 16 February 2022 that she was going to follow-up the Respondent’s claim relating to refrigeration, Uber Eats costs, removal costs and NBN connection fee herself with Ray White Runaway Bay.
52. [52]
    The Applicant has demonstrated that all tenancy matters, claims or anything arising with respect to the residential unit would be dealt with by her agents, Ray White Runaway Bay, rather than herself personally. The evidence demonstrates that the Applicant removed herself from dealing with these matters personally and left them in the hands of Ray White Runaway Bay.
53. [53]
    The Applicant seeks to argue that Ray White Runaway Bay did not have authority to represent her at the hearing before the Adjudicator. The difficulty for the Applicant with this argument is that having nominated the address of Ray White Runaway Bay as her address in the lease document she continued to act in accordance with those arrangements. The latest evidence of the Applicant dealing with those agents is the claim for damages by the Respondent which was referred by the Applicant to that agency to deal with and with whom the Applicant would contact to see how it was progressing. There is no evidence before the Adjudicator that the Applicant ever terminated that agency arrangement or did anything to indicate that those agents were no longer acting on her behalf.
54. [54]
    The Adjudicator had a discretion pursuant to s 43 of the QCAT Act to appoint a person to represent an unrepresented party at the hearing. There is no evidence that Ms Peeke was in any way disqualified from being a representative of a party to the proceedings. The Adjudicator had evidence by which the Tribunal could be satisfied that Ms Peeke was an appropriate person to represent the Applicant. The evidence is that Ms Peeke was from Ray White Runaway Bay and had previous dealings with the Respondent in respect of the tenancy issues arising from the residential unit. The Applicant’s submissions do not demonstrate to any extent why Ms Peeke should not have been appointed as a representative of the Applicant.
55. [55]
    The Tribunal is not satisfied that the Applicant did not have notice of the proceedings heard by the Adjudicator. The evidence indicates that tenancy matters and the claim arising from the tenancy were to be dealt with by her appointed agent, Ray White Runaway Bay. The extent to which the Applicant and Ray White Runaway Bay communicated on these matters is something that does not concern the Respondent or the Tribunal in these proceedings for leave to appeal or to appeal.
56. [56]
    The Applicant has raised no ground to suggest that there is a reasonably arguable case of error made in the proceedings before the Adjudicator. The Applicant does not raise any question of general importance upon which further argument is required. Nor does the Applicant raise any ground to suggest there is a reasonable prospect that the Applicant would obtain further substantive relief in these proceedings. The Applicant has not demonstrated that there has been a substantial injustice or that there is an error to be corrected.
57. [57]
    The Tribunal rejects the Applicants submissions and finds that the Applicant has raised no grounds for a grant of leave to appeal relating to her argument that she did not have notice of the minor civil dispute Application nor of the proceedings before the Adjudicator and that Ray White Runaway Bay did not have authority to represent her. The Application for leave to appeal on this basis will be dismissed.

The Adjudicator Did Not Have Jurisdiction to Hear and Determine the Application

58. [58]
    This ground for leave to appeal relies upon the Applicants assertion that she was not personally or otherwise served with the minor civil dispute application and had no notice of it, nor did she have notice of the hearing of the application. The Applicant argues that the hearing by the Adjudicator was conducted in circumstances where there is no jurisdiction.
59. [59]
    As has already been found by the Tribunal, the Applicant allowed Ray White Runaway Bay to be her address for service of notices relating to the tenancy and she relied upon that agency to conduct her tenancy affairs on her behalf. The discretion of the Adjudicator to make orders for that agency to represent the Applicant was exercised appropriately and in accordance with the evidence.
60. [60]
    The minor civil dispute application refers to the Applicant’s address as that of Ray White Runaway Bay as well as their email address. Documents in the proceedings were sent to those addresses. The Applicant would have had notice of those documents as she should, or ought to have been, informed of those matters and other events by her agents, Ray White Runaway Bay. In the circumstances the Applicant would have or should have known of the existence of the proceedings and the timing of the hearing.
61. [61]
    In the circumstances, the Applicant was represented at the hearing before the Adjudicator. The Applicant’s assertion that the Adjudicator lacks jurisdiction has not been established. The Application for leave to appeal on this ground should be dismissed.
62. [62]
    Further, the Applicant has not established that there was any reasonable argument that the Adjudicator was in error in granting leave to Ray White Runaway Bay to represent the Applicant at the hearing.
63. [63]
    The Tribunal finds that the Adjudicator did have jurisdiction to hear and determine the MCD Application and to proceed with that hearing.
64. [64]
    For these reasons the Tribunal dismisses the Applicant’s Application for leave to appeal based upon the assertion the Adjudicator did not have jurisdiction.

Ms Peeke did not have authority, actual or otherwise, to represent the Applicant

65. [65]
    The Applicant relies upon the assertion that Ms Peeke had no authority whether actual or otherwise to represent the Applicant in the Tribunal proceedings conducted by the Adjudicator.
66. [66]
    The Applicant also contends that as a consequence there has been a denial of procedural fairness and a denial of natural justice.
67. [67]
    The evidence establishes through various emails and the transcript of the proceedings that Ms Peeke was part of the agency conducted as Ray White Runaway Bay who were the place of service of notices for the Applicant and also conducted the tenancy affairs on behalf of the Applicant.
68. [68]
    The basis sought for leave to appeal by the Applicant is not supported by the evidence. The Tribunal finds that the Applicant has not established this ground for seeking the grant of leave to appeal. Nor has the Applicant demonstrated any error in the proceedings below to entitle a granted leave to appeal.
69. [69]
    The Tribunal dismisses the Applicant’s Application for leave to appeal on this ground.

Errors of Fact and Law 

70. [70]
    The Applicant contends that there are errors of fact and law which arise because she was not present or represented at the hearing.
71. [71]
    The issue of representation of the Applicant has already been discussed and determined. The Tribunal has already made findings that the Applicant was represented by her agents in the proceedings before the Adjudicator. There is no basis raised in this ground for the grant of leave to appeal.
72. [72]
    The Applicant asserts that there were errors of fact made in the decision as referred to in exhibit KJW-06. However that exhibit, recites a history of an incident involving a next-door neighbour which led to the mutual termination of the tenancy. It also contains screenshots and other material which appeared to be fresh evidence for which the Applicant has not applied to the Tribunal for leave to adduce fresh evidence in these proceedings. However, the submission of the Applicant is that she believes she was deceived by the Respondent about this incident with the neighbour and her agreement to terminate the tenancy was obtained under false pretences. None of these matters satisfy the relevant criteria stated above relating to establishing an error made in the decision by the Adjudicator. These matters relate to whether the Applicants consent was properly obtained for the agreement to mutually discharge the lease. That is not the issue in these proceedings.
73. [73]
    The Applicant also seeks to assert they are errors of fact that the tenancy was without refrigeration for the full term of the lease. The facts relating to the refrigerator were fully dealt with by the Tribunal during the course of that hearing. The Applicant now seeks to “re-litigate” an issue that has been dealt with below. The Applicant also seeks to adduce fresh evidence about this refrigerator, and that there were other refrigerators available to the Applicant in circumstances where there is no Application to adduce fresh evidence before the Tribunal. The Applicant was represented at the hearing before the Adjudicator and Ms Peeke chose not to provide any additional documents to the Adjudicator who was given every opportunity to provide evidence in connection with the consequences of the faulty refrigerator. The Applicant does not raise any error in the decision of the Adjudicator relating to the asserted errors of fact. The Tribunal rejects the Applicant’s submissions relating to errors of fact.
74. [74]
    The Applicant contends the Adjudicator erred in law by not considering the cause of any fault of the refrigerator and that the Adjudicator considered irrelevant matters. The Applicant’s representative before the Adjudicator, Ms Peeke, gave evidence relating to the issue of the faulty refrigerator. It is not now open to the Applicant to raise a new ground of argument relating to the cause of any fault which was not pursued in the proceedings before the Adjudicator. These contentions by the Applicant raise no ground which establishes that there was an error in the decision of the adjudicator. The Tribunal rejects the Applicant’s submissions relating to errors of law.
75. [75]
    The Tribunal dismisses the Applicant’s Application for leave to appeal on the ground that the decision of the Adjudicator contained errors of fact and/or errors of law.

Any Award of Compensation Should Have Been Considerably Less

76. [76]
    The Applicant raises as a ground for the grant of leave to appeal that the Adjudicator erred in fact and as a result the discretion miscarried manifestly by awarding the Respondent significantly more compensation than was suitable (if any).
77. [77]
    In particular, the Applicant argues that in awarding compensation for “Uber Eats” the Adjudicator failed to consider the issue of mitigation. That issue the Applicant contends is that the Respondent could have hired a refrigerator from $15 per week resolving the temporary issue of the refrigerator. There are a number of difficulties with this contention. Firstly, it was not argued in the proceedings before the Adjudicator. The first time this argument is raised is in the Application for leave to appeal. This appeal process is not an opportunity for an unsuccessful litigant to relitigate issues decided based on new grounds that should have been raised in the primary hearing. Secondly, there was no evidence about the hiring of a refrigerator from $15 per week before the Adjudicator. Nor was there any argument before the Adjudicator as to whose responsibility it was to supply a hired refrigerator. Was it the tenant’s responsibility, rather than the residential unit owner (the Applicant) or its agent (Ray White Runaway Bay) to provide a hired refrigerator? This issue has not been argued in the proceedings before the Adjudicator. The Applicant does not demonstrate that there was any error in the proceedings and the decision by the Adjudicator. The Tribunal rejects the Applicant’s submissions that the Adjudicator’s discretion miscarried manifestly by awarding significantly more compensation than was suitable.
78. [78]
    The Tribunal dismisses the Applicant’s Application for leave to appeal on the ground that the discretion of the Adjudicator miscarried manifestly by awarding the tenant significantly more compensation than was suitable.

The Applicant’s Application to Appeal

79. [79]
    The Applicant’s Application includes (assuming leave to appeal was granted) also an appeal from the decision of the Adjudicator.
80. [80]
    The grounds raised by the Applicant for leave to appeal are also relied upon by the Applicant to appeal the decision of the Adjudicator.
81. [81]
    For the reasons already provided, those grounds do not raise any substantive point or basis on which it is likely that there would be a successful challenge to the decision of the Adjudicator. There is no substantial issue raised in the grounds which would suggest that the Applicant had any realistic prospects of success on an appeal assuming leave to appeal was granted.
82. [82]
    The Tribunal considers that there is no injustice to the Applicant in dismissing the Application to appeal as there are not sufficient prospects of overturning the decision of the Adjudicator.

Orders

83. [83]
    The Tribunal orders that the Application filed in the Tribunal by the Applicant on 31 May 2022 for leave to appeal or appeal is dismissed.
84. [84]
    Further directions will be made in the event that either party intends to apply for costs. All parties will have liberty to apply these orders of the Tribunal.