Bailey v Hurtado & Anor [2024] QCATA 108

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Bailey v Hurtado & Anor [2024] QCATA 108 PARTIES: ANDREW JOHN HYDE BAILEY (applicant) GRETCHEN JANE BAILEY (applicant) v MARIA CLARA MELO HURTADO (respondent) EUGENIO BELLI (respondent) APPLICATION NO/S: APL308-23 ORIGINATING APPLICATION NO/S: Q567-23 MATTER TYPE: Appeals DELIVERED ON: 14 October 2024 HEARD AT: Brisbane DECISION OF: Member Goodman ORDERS: Leave to appeal is refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where notice to landlord’s agent sufficient to satisfy notice requirements – where the evidence was capable of supporting the conclusions reached – where leave to appeal refused Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 143(3) Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 206 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Cachia v Grech [2009] NSWCA 232 Cougar Air Pty Ltd v Sankarayya [2015] QCATA 98 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 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Hempel v Richardson & Wrench Hervey Bay [2018] QCATA 170 -- 1 of 5 -- 2 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 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] From 14 June 2022 to 12 January 2023, the applicants were the landlords of the respondents. During the tenancy, the rental property experienced issues with mould. After the tenants requested that the issue was dealt with, the landlords charged the tenants $600 for cleaning the mould and, via a facility put in place for the payment of rent, withdrew that money from the tenants’ bank account without their consent. The tenants then brought proceedings in this tribunal seeking return of the $600, and a payment of $1,000 ($50 for 20 weeks) due to the state of the property. [2] A hearing was conducted on 29 August 2023. The landlords were not present and were not represented. They had not filed a request to adjourn the hearing, or any material by way of response, counter-application or submissions. Applying s 93 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) the hearing proceeded in their absence, and the learned adjudicator determined that the landlords pay the tenants $1,600. [3] The landlords have applied for leave to appeal,1 and, if successful, to appeal against the tribunal’s decision. An application to stay the decision was refused by the tribunal on 12 October 2023. [4] This is the decision in relation to the application for leave to appeal and, if granted, the appeal. [5] In order to grant leave to appeal, the Appeal Tribunal considers whether: (a) there is a reasonably arguable case of error in the primary decision;2 (b) there is a reasonable prospect that the appellant will obtain substantive relief;3 and (c) leave is needed to correct a substantial injustice caused by the error;4 or (d) there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.5 [6] An error of law may occur where a decision maker: (a) has made a finding of fact without probative evidence to support it, or has drawn an inference which was not reasonably open on the primary facts;6 or 1 QCAT Act, s 143. 2 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 3 Cachia v Grech [2009] NSWCA 232, 2. 4 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 5 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. 6 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 356. -- 2 of 5 -- 3 (b) has made a decision which is manifestly unreasonable by failing to give adequate weight to a relevant factor of great importance or given excessive weight to a relevant factor of no great importance.7 [7] The appeal process is not an opportunity for applicants to have their case automatically reheard or a decision reconsidered.8 Leave to appeal will not be granted merely because an appeal tribunal disagrees with a factual finding of the tribunal.9 The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions. [8] In seeking leave to appeal, the landlords say that: (a) They had no prior knowledge of the claim and were not notified until after the decision was made. (b) The tenants were responsible for the mould and therefore are responsible for the cleaning costs, as the mould was due to inadequate ventilation and the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) provides that if the tenant causes the mould, they must clean it and pay for any damage caused by the mould. (c) There is evidence that the bathroom ventilation was working correctly. (d) The premises were not unfit or unhealthy. The mould was cleaned and the tenants asked to renew the lease and continue living in the house. (e) Based on the new information provided by them, the tribunal should “review” the previous decision and find that they were not responsible for the cause of the mould or the cleaning of the mould and therefore are not required to pay $1,600 to the tenants. DID THE APPELLANTS RECEIVE ADEQUATE NOTICE? [9] In relation to the landlords’ claim that they did not receive notice of the application, I note that the general tenancy agreement signed by the parties on 19 April 2022 states that: (a) the landlords’ agent is Coronis QLD Head Office, which has an address in Lutwyche, (b) the lessors’ address is the same Lutwyche address, (c) notices may be given to the lessor at the agent’s email address, which is specified in the agreement. [10] Clause 3.1 of the agreement provides that Coronis QLD Head Office is the “agent” of the lessors, which authorised the agent to stand in the lessor’s place in any application to a tribunal by the lessor or the tenant. 7 Ibid, 340. 8 Hempel v Richardson & Wrench Hervey Bay [2018] QCATA 170 [14]. 9 Ibid; Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611, [131]. -- 3 of 5 -- 4 [11] The Residential Tenancies and Rooming Accommodation Act 2008 (Qld) provides that, where the lessor has an agent, the agent stands in the lessor’s place for a prescribed proceeding.10 [12] On 10 July 2023, the tribunal’s registry sent a copy of the application and supporting documents to the landlords at the specified email address. A notice of the hearing was sent to the same email address on 4 August 2023. [13] Both as a result of the express provisions of the agreement between the parties, and on the basis of the legislative provisions, I am satisfied that the landlords had sufficient notice of the application and of the hearing. SHOULD LEAVE TO APPEAL BE GRANTED? [14] The evidence before the adjudicator consisted of: (a) Submissions and evidence from the tenants claiming that the mould was due to leaks in the roof which were reported to the landlord but not attended to in a timely fashion; (b) The notice of hearing; (c) A Notice of Unresolved Dispute from the Residential Tenancies Authority; (d) The application lodged at the tribunal on 27 March 2023; (e) Photographs of the property (internal and external); (f) A Service Agreement from Mould Cleaning Australia; (g) Email confirmation from an electrician that exhaust fans were working correctly; (h) An invoice to the tenants dated 18 November 2022 for “contribution to mould cleaning”, advising that $600 would be debited from their bank account on or after 18 December 2022; (i) A General Tenancy Agreement (Form 18a) signed by the parties. [15] At the hearing, the learned adjudicator, having noted the landlords’ failure to engage in the proceedings and clarified some minor matters with the tenants, states, by way of reasons for their decision: So I’m going to make that order now. This is decision in matter Q567 of ’23. It’s an application concerning property at 24 Orwell Street, Camp Hill. Firstly, the respondents aren’t here today, and they’ve received notice of the hearing on the 4 th of the 8 th 2023. They also received the application from the tribunal prior to that. I’m satisfied that the notice of unresolved dispute has been sent through. And in their application, the applicants are claiming $600 which the respondent real estate agent incorrectly took directly from their account by direct debit to pay a mould cleaning amount, and that is illegal, and they shouldn’t have done that. So I’m authorising that. They’ve also claimed $1000, which is $50 per week over 20 weeks, for the state of the premises, which, I’m satisfied, was clearly an issue from the very beginning, and I’m also satisfied that the owners and the property managers 10 Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 206. -- 4 of 5 -- 5 were well aware of it because, as the applicants have said in their application, insurances came to look at the roof within a few weeks of them – I think it was five days after starting the lease. So the property manager and the owner have not carried out their obligations under the Act to provide a fit premises. So I’m authorising that $1000 as well. So it’s the order of the tribunal that the respondent pay the applicants $1600. Thank you. [16] The reasons for decision provided by the learned adjudicator are brief. I take into account that in the minor civil jurisdiction, adjudicators are required to quickly assess all the evidence brought before them, identify and determine the factual and legal issues, formulate their orders and give their reasons during a short hearing. Reasons are by necessity brief. [17] It is clear that the learned adjudicator had read the material and was satisfied that the landlords had not provided a “fit premises”. It was on that basis that the decision was made. The adjudicator determined that the mould was as a result of the failure of the landlords, and not due to any action or inaction by the tenants. There was sufficient evidence to justify that decision, even though the landlords say it was wrong. There is no error of law identified by the landlords. There is a finding of fact which was open to the adjudicator to make based on their assessment of the evidence. The evidence provided by the tenants was uncontradicted and the adjudicator accepted it. [18] The assessment of evidence is a matter for the adjudicator in the hearing. As the evidence was capable of supporting the conclusions reached, there is no basis for interfering with the factual conclusions reached by the adjudicator. [19] I am not satisfied that there is a reasonably arguable case of error in the primary decision, or that there is a reasonable prospect that the appellant would obtain substantive relief if leave was given for the appeal to be considered. I am not satisfied that leave is needed to correct a substantial injustice caused by an error, and I am not satisfied that there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage. [20] Leave to appeal is refused. -- 5 of 5 --