Blue Fox Realty Group Pty Ltd & Ors v Gledhill & Anor (No 2) [2023] QCAT 384

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Blue Fox Realty Group Pty Ltd & Ors v Gledhill & Anor (No 2) [2023] QCAT 384 PARTIES: BLUE FOX REALTY GROUP PTY LTD KAREN VENZ WESLEY VENZ (applicant) v DANIELLE LYN GLEDHILL NICOLAS ALAN GARCIA PIERAGOSTINI (respondent) APPLICATION NO/S: T25/23 MATTER TYPE: Residential tenancy matters DELIVERED ON: 29 September 2023 HEARING DATE: 29 September 2023 HEARD AT: Coolangatta DECISION OF: Adjudicator Alan Walsh ORDERS: 1. The amount referred to in paragraph [39] and [51] of the reasons and Order 2 of the Orders dated 4 September 2023 on the Counterapplication for the rent differential claim is corrected to read $2,281.43. 2. The amount payable by Mr and Mrs Venz after set off of $451.30 referred to in Order 1 of the Orders dated 4 September 2023 is amended to read $3,684.13, calculated as - $4,135.43 less $451.30 = $3,684.13. 3. The corrected net liability of Mr and Mrs Venz to Ms Gledhill and Mr Pieragostini is $3,684.13 payable immediately. 4. The case citation as it presently reads be amended by adding the abbreviation Ltd after Blue Fox Property Group Pty in the heading. 5. An amended version of the decision and reasons delivered on 4 September 2023 reflecting these and consequential amendments to the text of the original decision be published in due course to the parties and substituted for the decision presently -- 1 of 5 -- 2 published by the Supreme Court Library on its QCAT case law database. CATCHWORDS: CIVIL LAW – CIVIL TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY DISPUTE – MISTAKES – where final decision made and reasons for decision published – where applicant filed form 43 application to correct mistakes – where respondents opposed application – whether mistakes evident on the record – whether orders rectifying mistakes should be made and in what term Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 135 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 90 REASONS FOR DECISION Correction Application/context [1] I published written reasons and my final decision in this case on 4 September 2023, following a hearing on 23 August 2023. The case is reported on the QCAT case law database maintained by the Supreme Court of Queensland Library as Blue Fox Realty Group Pty & Ors v Gledhill & Anor [2023] QCAT 349. Subsequently, Mr and Mrs Venz have filed a Form 43 Application on 13 September 2023 to correct perceived arithmetical errors in the text of my reasons and orders. Having called for and received written submissions, I now hear and decide the application for correction on the papers, dispensing with the need for further in-person hearing. Correction powers [2] Applications of this type are not often made so I recite fully the legislative provisions that apply. [3] Section 135(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act) provides that the tribunal may correct a decision that contains (a) a clerical mistake; or (b) an error arising from an accidental slip or omission; or (c) a material miscalculation of figures or a material mistake in the description of a matter, person or thing mentioned in the decision; or (d) a defect of form. By section 135(2), the tribunal may act under subsection (1) on the application of a party to the proceeding or on its own initiative. Subsection (3) requires that the application be made within the period and in the way stated in the rules. Subsection (4) provides that a party cannot make an application under subsection (2) in relation to a decision the subject of an appeal, or an application for leave to appeal, under part 8. Subsection (5) says that subsection (4) applies whether or not the appeal or application has been decided. Section 135 is what colloquially is known as the “slip rule”. [4] Rule 90 of the Queensland Civil and Administrative Act Rules 2009 (Qld) (the QCATR) requires that an application to the tribunal under section 135 of the QCAT Act be made (a) in the approved form; and (b) within 28 days after the relevant day; -- 2 of 5 -- 3 and (c) by filing it. The term “relevant day” for purposes of rule 90 means the day the party is given notice of the decision unless the party has requested written reasons for the decision under section 122 of the Act, in which event it is the day the party is given the written reasons. Section 61 of the QCAT Act gives the Tribunal power to extend a time limit. See sections 121 and 148 of the Act for notice of final decisions. Compliance [5] The Form 43 Application complies with the requirements of section 135(3) of the QCAT Act and Rule 90 of the QCATR. It concerns an accidental slip or omission and a material miscalculation of figures and is an exception to the functus officio doctrine which is that the Tribunal’s jurisdiction is exhausted once a final decision is made. The utility of the section is that it avoids the need to apply for leave to appeal and further paper processes and another hearing that would otherwise follow, occasioning delay and further cost. Submissions [6] Summarised, Mr and Mrs Venz submit that the following are the correct figures for rent and compensation. (a) On the Counterapplication, Order 2 refers to compensation in the amount of $2,615.76 for the rent differential on new rental premises limited to the balance of the term of the tenancy for 8B Cornwall Drive, Elanora between 9 April 2023 and 14 July 2023. The calculation is incorrect because the time period is 95 days or 13.57 weeks which, using the claimed comparable extra rent of $170 per week equates to $2,307.14 - a difference of $308.61, by which the allowance of $2,615.76 in compensation ordered should be reduced. (b) I found at paragraph [7] on page 4 of the reasons that it was not in dispute that the tenants paid rent up to and including 8 April 2023, but not afterwards. By reference to the rent ledger filed by Melanie Littlemore of Blue Fox Realty Group Pty Ltd, a further amount of $49.99 is therefore owing by the tenants to bring rent paid up to 9 April 2023. That was the vacate date stated in the tenants’ Form 13 Notice of intention to leave without ground. (c) The sum of $308.61, being the amount by which the extra rent awarded should be reduced, and $49.99 which should be allowed for unpaid rent to 9 April 2023, is $358.60, by which Mr and Mrs Venz’ liability to Ms Gledhill and Mr Pieragostini should be reduced, with the figures in the orders to be adjusted accordingly. [7] Insofar as are relevant, Ms Gledhill and Mr Pieragostini submit the following in response. (a) The start date of the new lease elsewhere was 28 March 2023, not 9 or 10 April 2023, from which date they paid the higher rent after moving from 8B Cornwall Drive, Elanora. (b) They are paying an additional $150.00 a month for electricity and internet on the new property which is not included as compensation awarded to them so, by the Landlord’s rationale they should equally be seeking further compensation relating to these costs. -- 3 of 5 -- 4 (c) There is no new evidence in the Landlord’s claim that would require a change in judgement on this case. [8] Mr and Mrs Venz’ submissions in reply are that there is no new evidence relied upon. They re-assert their original submissions and say the correct amount of their liability for compensation for the rent differential is $2,307.14. Analysis, discussion and findings [9] Mr and Mrs Venz are correct in saying that they do not rely on new evidence. Ms Gledhill and Mr Pieragostini have misread the Form 43. It is a standard form designed to cater for several contingencies. Though it does contain a section to be completed where new evidence is sought to be relied on, nothing has been inserted there so no new evidence is put forward. Ironically, reference by the former tenants to additional electricity and internet costs in their submission is reference to new evidence available to them at the time of the hearing but not relied upon because no claim was made on that account - so they cannot rely on it now. [10] Mr and Mrs Venz are also correct in saying that there are arithmetical errors in the decision and orders that need to be corrected. However, there is also an arithmetical error in Mr Venz’ own calculation of $2,307.14 referred to in the reply submission, to which I will return shortly. [11] In part, the error in the calculation of the amount to be paid in compensation for increased rent elsewhere arises from a calculation error by the former tenants in claiming $2,615.75 for the difference in rent of $170.00 per week from 28 March 2023 to 14 July 2023. Both dates inclusive, the number of days was 109 days making the correct figure for that period $2,647.14 (170/7 x 109 = $2,647.14) not the lesser figure claimed that I allowed. Mr and Mrs Venz unfortunately did not point this out at the hearing, nor did they or their agent make any submission about the correct amount of compensation for the rent differential if I allowed it for the period from 10 April to 14 July 2023 or the period claimed. [12] The correct rent differential figure for compensation for the period 10 April to 14 July 2023 (both dates inclusive) is $2,331.42 for 96 days, that is - $170/7 x 96 = $2,331.42. That must be further reduced by $49.99 for unpaid rent for one day due on 9 April 2023, the date referred to in the NITLWOG (see the acronym in my original decision) on which the former tenants handed back vacant possession of the property, so the net figure payable by Mr and Mrs Venz for rent differential compensation is $2,281.43. Otherwise, Ms Gledhill and Mr Pieragostini would be overcompensated, which would be unfair and inequitable because the objective of compensation is to put, so far as money can, a damaged person back in the position1 they would otherwise have been but for a relevant breach causing loss and damage. [13] That arithmetical error in turn translated into the calculation of the amount of the net liability of Mr and Mrs Venz overall and requires correction by the following orders. Orders [14] The amount referred to in paragraph [39] and [51] of the reasons and Order 2 of the Orders dated 4 September 2023 on the Counterapplication for the rent differential claim is corrected to read $2,281.43. The amount payable by Mr and Mrs Venz after 1 Restitutio in integrum. -- 4 of 5 -- 5 set off of $451.30 referred to in Order 1 of the Orders dated 4 September 2023 is amended to read $3,684.13, calculated as - $4,135.43 less $451.30 = $3,684.13. The corrected net liability of Mr and Mrs Venz to Ms Gledhill and Mr Pieragostini is $3,684.13 payable immediately. I will of my own motion also order the correction of the case citation as it presently reads by adding the abbreviation Ltd after Blue Fox Property Group Pty in the heading and that an amended version of the decision and reasons delivered on 4 September 20232 reflecting these and consequential amendments to the text of the original decision be published in due course to the parties and substituted for the decision presently published by the Supreme Court Library on its QCAT case law database. Other [15] I will ask Coolangatta Registry to email these reasons and amended Orders to the parties in advance of hard copy to be sent by mail. 2 With consequential amendments to the text and amounts in paragraph [39] and paragraph [51]. -- 5 of 5 --