Blink Property Qld v Barnett [2024] QCATA 71

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Blink Property Qld v Barnett [2024] QCATA 71 PARTIES: BLINK PROPERTY QUEENSLAND (applicant/appellant) v DAVID BARNETT (respondent) JEANETTE BARNETT (respondent) APPLICATION NO/S: APL004-23 ORIGINATING APPLICATION NO/S: MCDT276-22 Caboolture MATTER TYPE: Appeals DELIVERED ON: 3 July 2024 HEARING DATE: 12 June 2024 HEARD AT: Brisbane DECISION OF: Member Howe ORDERS: Leave to appeal refused. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where tenants pursuant to a residential tenancy agreement claimed the bond from the lessors agent – where the bond had been paid out some years earlier by the RTA at the request of the agent to an unknown account – where there was limited evidence before the Adjudicator about the circumstances of payment or the unknown account – where the application to the RTA by the agent to pay at the bond was made midway through the fixed term tenancy – where the tenants were long-term tenants in the property for over 9 years – where oral evidence by the tenants that they had not received the bond was accepted – where fresh evidence was sought to be adduced without application beforehand – where the fresh evidence was not considered on the application for leave to appeal Pickering v McArthur [2005] QCA 294 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) -- 1 of 4 -- 2 REASONS FOR DECISION [1] The appellant acted as real estate agent for a lessor of residential property at Caboolture and Mr and Mrs Barnett were the tenants. [2] The lessor gave notice to end the tenancy in 2022 and the tenants asked for return of their bond paid at commencement of the tenancy in the sum of $1,560. The Residential Tenancies Authority (‘RTA’) advised they only held a bond of $40. The RTA said the rest of the bond had been paid out on 13 July 2018. [3] The tenants filed an application in the Tribunal for minor civil dispute – residential tenancy dispute against the agent claiming, amongst other things, the amount of $1,520, the amount missing from the bond. They claimed they had not received the money. [4] The matter came on for hearing before an Adjudicator and the Adjudicator ordered the agent to pay the tenants the sum of $1,550.70. The agent seeks leave to appeal that decision. [5] Given this is an appeal from a decision made in the Tribunal’s minor civil dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.1 [6] Leave to appeal, where leave is required, will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.2 [7] There is only the one complaint founding a ground of appeal here, which is in the following terms: The tenant has claimed that their bond was refunded to Blink Property but we have supporting evidence to say it was refunded into a bank account in the tenants’ joint names. [8] The inability of self-represented parties to articulate adequate grounds of appeal (or identify relevant issues in dispute) is not unusual in the Tribunal. It is appropriate to accord them a degree of latitude. [9] I take the ground of appeal to be that the weight of the evidence fell in favour of the appellant and no reasonable decision maker could have found in favour of the tenants on the evidence adduced. [10] The appellant offers nothing more, certainly no submissions, in support of its one ground of appeal. [11] Prior to hearing the parties had been directed, if they wished to adduce fresh evidence on appeal, to make an application for that prior to the hearing of the appeal. The appellant filed an application to stay the decision below on 5 January 2023, and in support of that application attached copies of its bank account statements. There was no explanation offered why this material was not available for the hearing at first instance. The material is not fresh evidence. 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 [3], cited with approval in Parr v Queensland Police Service [2021] QCA 216 [7]. -- 2 of 4 -- 3 [12] The respondents had not claimed that the RTA paid money into the appellant’s account. What the respondents said at the hearing below was that, at the appellant’ request, the RTA paid money into an unknown account which was not their account. I shall not refer to this material further in the absence of the application for leave to adduce fresh evidence having been made, given the respondents were not given an opportunity to address it. [13] The respondents have made submissions in the appeal. They have also attached documents to their submissions which were not placed before the Adjudicator at hearing, without explanation why. They have also failed to make an application to adduce fresh evidence on appeal. I shall not consider their late material either. [14] The material before the Adjudicator who heard the matter was sparse. Clearly relevant material was missing. The relevant residential tenancy agreement commenced on 5 January 2018 and ended on 4 January 2019. Only the first page of that document was put into evidence, and that by the respondents. The page showing the bond details was missing. [15] The RTA sent an email to the female respondent on 27 June 2022 in response to an enquiry concerning their bond. The email states Blink Property had submitted a bond refund request via RTA’s eServices on 11 July 2018 asking that the amount of $710 be paid out to Mr Barnett and $710 to Mrs Barnett. The RTA refunded the money into a nominated joint bank account ending in xxxx431 on the 13 July 2018. It is unclear where the RTA obtained the account information concerned. [16] The respondents gave oral evidence that they had no joint account. They said the account xxxx431 was not theirs and they had never received the bond. [17] One would have thought the appellant would have filed a copy of their records showing the account details held by them from the tenants to show it matched the account that the RTA pay the bond into. They did not do that; indeed they filed no evidence at all. [18] Nor did the agent’s representative at hearing refute the statement made in the email from the RTA that it had been the appellant that had requested the bond be paid out. The appellant’s position was simply that they held very few records about the matter and they held no record of claiming the bond back from the RTA. [19] Nor did the appellant address why a request to release a bond mid-point during the currency of a fixed term tenancy might have been made. It is most unusual. Indeed the tenancy was extended for another 12 months on 9 January 2019 with the bond increasing, apparently by $100, to $1560. The respondents were long-term tenants. They stayed in the property for nearly 10 years but then received notice to leave in 2022. [20] There was a statutory declaration from the lessor. He said he had given no instructions to the appellant about the bond in 2018 and had not authorised it be released to the respondents. The first he knew about it was when his new agents (taking over from the appellant) contacted him to say there was only a bond of $40 held by the RTA. [21] The bond apparently increased (apparently, because as stated, a full copy of the relevant tenancy agreement was not in evidence) in 2019 given a bond lodgement form was filed by the appellant for the next 12 month term of the tenancy from 9 January 2019 through to 7 January 2020. In the bond lodgement form the bond was -- 3 of 4 -- 4 noted as $1560 and an amount of $100 received from the respondents was being paid to the RTA. That was intended to take the bond to $1,560 from $1,520 – but of course, an amount of $1,420 had already been paid out by the RTA in 2018. [22] The missing bond money was only discovered when the lessor engaged new agents in September 2020 and they made enquiries with the RTA. [23] The learned adjudicator had the following exchange with the female respondent at hearing: ADJUDICATOR: Thank you. Ms Barnett, I’ll give you an opportunity now to say anything you wish to say in response. One of the difficulties that is taxing me is that we don’t know the name of the account provided to you by the Residential Tenancies Authority into which the amount was paid. The only evidence that we have about payment is what you were told by the Residential Tenancies Authority that it was paid to the respondent. You may care to address those matters. MS BARNETT: Yep. When we rang the Residential Tenancies Authority, they told us that it was withdrawn by Blink Property to an unknown account. They wouldn’t tell us. We had to - because due to privacy. So we involved QSTARS and we had a three-way sort of phone conversation where they said, basically, it’s fraud, they shouldn’t have withdrew the bond and put it into whoever’s account that was, and the reason that I’m going sort of - claiming for compensation is because I shouldn’t have had to come up with a second bond, because I never did anything with the first. I was in a 12-month lease. We hadn’t planned on leaving the house.3 [24] The agent’s representative agreed it was difficult obtaining information from the RTA. The RTA had refused to give information to the appellant as well. [25] The adjudicator accepted the evidence of the respondents that they telephoned the RTA and were advised the money had been withdrawn by the appellant and paid into an unknown account and that the RTA refused to advise details of that account. [26] The adjudicator was entitled to do that. He suffered from a lack of relevant material provided by the parties, but there was in support of the respondents’ claims the statutory declaration from the lessor saying he had not authorised the appellant to request disbursement of the bond, nor authorised it to be paid out to anyone. There was also the circumstance about, and lack of explanation why, a request to pay out the bond should be made halfway through a fixed term tenancy. The request to the RTA was made nearly 4 years prior to the end of the tenancy, with the tenancy spanning nearly 10 years. [27] The appellant raises no reasonable argument that there is an error to be corrected. The application for leave to appeal is refused. 3 Transcript 1-7 Line 34-49 -- 4 of 4 --