CITATION:	Holesgrove v First National Real Estate [2014] QCATA 15	

PARTIES:	Aaron Edward Holesgrove
(Applicant)	
	v	
	First National Real Estate
(Respondent)	

APPLICATION NUMBER:	APL502 -13	

MATTER TYPE:	Appeals	

HEARING DATE:	On the papers	

HEARD AT:	Brisbane	

DECISION OF:	Senior Member Stilgoe OAM	

DELIVERED ON:	20 January 2014	

DELIVERED AT:	Brisbane	

ORDERS MADE:	1. Leave to appeal refused	

CATCHWORDS:	APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where tenant alleged snake in premises – whether an emergency repair – where agent did not remove snake – whether tenant entitled to terminate tenancy – whether grounds for leave to appeal

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 217, 218, 219
 
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Chambers v Jobling (1986) 7 NSWLR 1
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
Cachia v Grech [2009] NSWCA 232 
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
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404

APPEARANCES and REPRESENTATION (if any):

The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION
[1]	Mr Holesgrove lived in a house managed by First National Real Estate. In April 2013, his friend, Mr Campion, was staying in the spare room. Mr Campion told Mr Holesgrove he heard a snake hissing and moving around in the wall of the spare room.
[2]	Mr Holesgrove alerted the agent. The agent took no action.
[3]	Mr Holesgrove did not see the snake. Mr Campion visited again and, again, said that he could hear a snake in the wall. Mr Holesgrove issued a notice to remedy breach, saying that the agent had not acted to remove the snake. The agent asked Mr Holesgrove to: call the office straight away if he saw a snake; keep the snake in sight; take a photo of the snake; and call Jeff, a professional snake catcher.
[4]	Mr Holesgrove was not satisfied with that response. He terminated the tenancy. The agent filed a claim for compensation for the usual items: unpaid rent, cleaning, water use, repairs and a break lease fee. Two Justices of the Peace, sitting in the tribunal’s minor civil dispute jurisdiction, allowed the agent’s claim.
[5]	Mr Holesgrove wants to appeal that decision. He says that Mr Campion was not available to give evidence at the hearing and the learned Justices of the Peace should have adjourned the hearing so that Mr Campion could attend. He says that the learned Justices of the Peace erred in deciding that the presence of a snake is not a ground for emergency repairs. He says that the learned Justices of the Peace awarded money that was not part of the original claim. He says that the learned Justices of the Peace made their decision based on their own experience for which there was no evidence.
[6]	Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?  Is there a reasonable prospect that the applicant will obtain substantive relief?  Is leave necessary to correct a substantial injustice caused by some error?  Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?
[7]	Mr Holesgrove has filed a statement from Mr Campion in support of his application for leave to appeal. The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Mr Holesgrove have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?
[8]	Mr Holesgrove did not ask the learned Justices of the Peace for an adjournment. Even if I accept that Mr Campion was not available on the day of the hearing, Mr Holesgrove has not explained why Mr Campion’s evidence was not available. As First National Real Estate points out in its submissions, Mr Holesgrove knew in July 2013 that there was a dispute about whether there was a snake at the house. Mr Holesgrove says he did not receive the Notice of Hearing until shortly before the hearing date but the file shows that the tribunal sent the notice of hearing almost six weeks beforehand. 
[9]	The evidence is not credible without Mr Campion being cross-examined. Mr Holesgrove admitted that, when Mr Campion pointed out the noises from the snake, he could not hear them. Mr Campion‘s statement should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Justices of the Peace.
[10]	The learned Justices of the Peace examined the meaning of “emergency repairs” carefully. I am not persuaded that their interpretation is wrong. In any event, the question is irrelevant.
[11]	If the presence of the snake was an emergency repair, Mr Holesgrove could, and did, notify the agent. As the agent took no action, he then had two options. He could attend to the repair himself. Mr Holesgrove pointed out that he could not spend more than two weeks rent to make emergency repairs and the snake catcher’s costs would be more than that.
[12]	The other option was to apply to the tribunal for orders. Mr Holesgrove did not do that. He simply left the tenancy. There is no section in the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) that allows him to take that action without appropriate notice. Mr Holesgrove was in breach of his tenancy agreement. He did not approach the tribunal for help. He must bear the consequences of his actions.
[13]	The learned Justices of the Peace added the filing fee to the agent’s claim. Although it was not part of the claim that the agent filed, Mr Mackay, on behalf of the agent, asked for it to be added to the claim. The learned Justices of the Peace were entitled to do so. There is no error.
[14]	Tribunal members can take judicial notice of facts that are so obvious they cannot be in dispute or are a matter of everyday experience. The noise a possum makes in a wall and the interrelationship of mice, snakes and dogs are not, perhaps, within that description. Although it would have been better if the learned Justices of the Peace had not made comments about these matters, their comments do not affect the validity of their decision.
[15]	There is no question of general importance that should be determined by the appeals tribunal. There is no reasonably arguable case that the learned Adjudicator was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.