Beale v Holmes [2023] QCATA 47

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Beale v Holmes [2023] QCATA 47 PARTIES: DARREN JOHN BEALE (first applicant/appellant) LLANA LEIGH BEALE (second applicant/appellant) v NATASHA HOLMES (respondent) APPLICATION NO/S: APL010-22 ORIGINATING APPLICATION NO/S: MCDT271/21 (Mackay) MATTER TYPE: Appeals DELIVERED ON: 19 May 2023 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judicial Member Peter Murphy SC ORDERS: Leave to appeal is granted. The appeal is allowed. The matter be returned to the Tribunal sitting at Mackay for reconsideration including the hearing of further evidence. Pursuant to s 146(c)(ii) of the Queensland Civil and Administrative Tribunal Act 2009, the Tribunal hearing the redetermination be constituted by a Member other than the Member who heard the proceedings appealed from. CATCHWORDS: APPEALS – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY DISPUTE – ADEQUACY OF REASONS – FINDINGS OF FACT – FINDINGS OF LAW – where the applicants applied for leave to appeal the decision of a Magistrate sitting as a member of the tribunal to award compensation to the respondent – where the applicants alleged errors of law and fact – whether leave to appeal should be granted – whether the appeal should be allowed – whether the member erred – whether the member engaged with or grappled with the submissions of the parties -- 1 of 9 -- 2 Queensland Civil and Administrative Tribunal Act 2009, s 61, 123, 142, 143, 146 Albrecht v Ainsworth & Ors [2015] QCA 220 Amundsen v Queensland College of Teachers [2011] QCATA 2 Croucher v Cachia [2016] NSWCA 132 Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Jackson & Anor v Commissioner, Queensland Fire and Emergency Services [2020] QCATA 171 King & Ors v Australian Securities and Investments Commission [2018] QCA 352 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 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] Mr and Ms Beale rented a house property in a suburb of Mackay pursuant to four consecutive residential tenancy agreements commencing in 2017. [2] Occupation of the premises under the last of the four agreements ended on 31 August 2021. During that tenancy, apparently in July 2021,1 the property was sold to Ms Holmes. [3] Ms Holmes instituted proceedings in the Tribunal through her agent Raine & Horne seeking compensation in an amount of $3,422 (later amended to $3,363.64). [4] That sum was said to be the “cost … for removal, patch and paint the areas affected” by adhesive hooks and fasteners (or their remnants) left in the premises when vacated. [5] The sum said to represent that cost was, it seems, approximately half the cost of repainting the entirety of the interior of the rented premises. [6] A Magistrate sitting as the Tribunal in Mackay ordered the Beales to pay Ms Holmes an amount of $3,009.14 comprising the sum claimed plus the filing fee, less an amount of $482 remaining of the rental bond after an amount had been deducted from it for cleaning fees. [7] The Beales want to appeal that decision. [8] The challenged orders are made in a “tenancy matter” and, therefore, a “minor civil dispute”.2 As a result, leave to appeal is required.3 1 The contract of sale was not in evidence before the Tribunal. Written submissions on behalf of Ms Holmes contended, “… the property settled to N Holmes (& partner at the time) on 7 July 2021”. An extract from the website realestate.com.au was in evidence and showed the property selling “in June 2021”. 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), Schedule 3, Dictionary. 3 QCAT Act, s 142(3)(a)(i). -- 2 of 9 -- 3 The application for leave to appeal [9] The Beales contend in their application that leave to appeal was granted on 9 February 2022. That assertion is incorrect. [10] An order was made on that day by Senior Member Howard which provides that “the application for leave to appeal or appeal filed 6 January is accepted as an application for leave to appeal or appeal …” [bold added]. No order granting leave to appeal was made. That question remains to be considered. [11] An application for leave must provide a basis for its grant directed to whether an arguable case of error attends the decision and whether the error has caused the applicant a substantial injustice.4 [12] As is common in appeals within the Tribunal, arguments in support of the grant of leave are here not articulated separately from the arguments supporting the appeal. If s 143(2)(b) of the QCAT Act – read in light of ss 143(3) and (4)(a) and (b) of that Act – is to be seen as requiring the filed application to specify reasons for the grant of leave separate from grounds for the appeal, in this case that requirement should be waived.5 The arguments in support of merit and injustice can be gleaned from those supporting the appeal. [13] The Beales act for themselves in respect of this application as they did below (although the transcript reveals Ms Beale is legally qualified). [14] Four grounds of appeal are contained within the application for appeal and a separately filed “Grounds of Appeal”. The grounds are, respectfully, inadequately framed but can be seen to assert two errors of fact (Grounds 1 and 2) and two errors of law (Grounds 3 and 4). [15] It is not necessary to further consider those asserted errors; the record reveals fundamental errors of law. The appeal was commenced regularly, and this Tribunal is bound to correct errors productive of injustice. [16] For the reasons which follow, leave to appeal should be granted and the appeal allowed. What issues were joined below and what was decided? [17] No written reasons for decision were issued by the Tribunal. The reasons, and the findings supporting those reasons, need to be found in the transcript of proceedings.6 [18] The application was heard by the Tribunal on 6 December 2021. The transcript reveals two attempts by the Tribunal to have the parties reach agreement. The first attempt apparently occurred at an initial mention of the matter7 and the second toward the end of the proceedings.8 [19] Ahead of the second occasion, the Tribunal said of the proceedings that morning: 4 QCAT Act, s 143(2)(b). As to the requirements for leave to be granted, see, for example, Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400; QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; Amundsen v Queensland College of Teachers [2011] QCATA 2. 5 QCAT Act, s 61(1)(c), (5). 6 QCAT Act, s 123. 7 Transcript of proceedings, 6 December 2021, p 1-20, 21–23. 8 Transcript of proceedings, 6 December 2021, p 1-20, 39–48. -- 3 of 9 -- 4 … please do not take anything I have said as having made a decision; I don’t work that way, never have worked that way. I’ve found out what I want to find out, but I have also told you that I read pages and pages and pages of all sorts of things, and I need to go clear in my mind, so please go outside….9 [20] When the parties returned and signified there was no agreement between them, the Tribunal said, “I will go away and consider the matter”.10 The proceedings were adjourned to 10 December “for the decision”.11 [21] On 10 December, the Tribunal referred to but one issue: “… 97 removable products were left in the property at the end of the tenancy, and who should pay to have them removed”. [22] Immediately, thereafter, the Tribunal said:12 As I’ve said the other day,13 if the property had remained unoccupied for a day or two after the expiration of the tenancy – or tenancies – then Mr and Mrs Beale may have been able to re-enter and attempt to remove them. But because Ms Holmes moved in more or less straight away, this could not happen. We have an invoice from Darren Smith Painting, which is itemised to a certain extent. And I quote: Ninety-seven command hooks (sticky adhesive hooks) removed, patched, repaired and painted, $3363.34. This is the best evidence available as to the cost involved in removal, and accordingly, I order as follows… [23] The passages just quoted constitute all such findings as were made by the Tribunal and the totality of the reasons for the order made. [24] Well ahead of the 6 December proceeding, the Beales had filed detailed written submissions. Within those submissions can be discerned eleven identifiable assertions founding their ultimate contention that no compensation should be ordered. [25] The Beales’ submissions were met with contrary assertions in written submissions by Raine & Horne on behalf of Ms Holmes. The errors of law [26] The issues raised by the Beales were centrally important to their case which the Tribunal was required to consider. [27] While some issues raised in the Beales’ written submissions might be seen to have had more substance than others, none could reasonably be dismissed peremptorily as unsustainable or frivolous. [28] In particular, issues were raised as to: (a) Ms Holmes’ (or her agent’s) standing to bring the application on the claimed basis that the tenancy agreement had not been attorned; 9 Ibid. 10 Transcript of proceedings, 6 December 2021, p 1-22, 12. 11 Transcript of proceedings, 6 December 2021, p 1-23, 30. 12 Transcript of proceedings, 10 December 2021, pp 1-3–1-4. 13 Presumably a reference to the 6 December proceedings. -- 4 of 9 -- 5 (b) Whether the claimed loss, or any loss, had in fact been sustained; (c) If so, what evidence (if any) quantified any such loss; (d) Was any alleged damage caused by the Beales and what evidence supported that causation; and (e) If there was any loss, whether Ms Holmes had mitigated that loss as she was obliged to do. [29] There was no reference to these issues by the Tribunal and no findings were made in respect of any of them. Axiomatically, there was no resolution of them. [30] Croucher v Cachia: “Where there is a real conflict in the evidence, it is necessary to ‘engage with, or grapple or wrestle with the cases presented by each party’”, accepting of course that “… the fact that some matters were not addressed at all … is not of itself sufficient to establish error”.14 [31] Here, the Tribunal “engage[d] with or grapple[d] with” none of the issues raised in detailed written submissions by both parties. [32] Equally, the Tribunal’s reasons are manifestly inadequate to explain the order made. [33] In King & Ors v Australian Securities and Investments Commission,15 the Court of Appeal held that reasons for judgment will generally: (a) refer to the evidence which was important to the determination of the matter; (b) set out material findings of fact and the reasons for those findings, including, where there are competing bodies of evidence, why the judge preferred one body over another; and (c) engage with the parties’ submissions by explaining why one case is preferred over the other. [34] It is recognised that “reasons do not need to be lengthy and elaborate”.16 That might be seen to be all the more so in a high-volume Tribunal statutorily charged with conducting proceedings informally and expeditiously. [35] However, the Tribunal’s reasons in the present case exhibit none of the characteristics enumerated by the Court of Appeal. [36] The failure to provide adequate reasons and the failure to address the case raised by the Beales is each an error of law. [37] The error is productive of substantial injustice to the Beales; compensation in the amount sought by Ms Holmes was ordered and the Beales’ case that no compensation was payable was not properly considered, nor reasons given for its rejection. 14 [2016] NSWCA 132 per Leeming JA at [124], [125] citing Keith v Gal [2013] NSWCA 339 at [109]– [119]; Murray v Sheldon Commercial Interiors Pty Ltd [2016] NSWCA 77 at [60], [60]–[66]; Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; 66 NSWLR 186 at [28]; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [66]. 15 [2018] QCA 352 at [39] cited in Jackson & Anor v Commissioner, Queensland Fire and Emergency Services [2020] QCATA 171. 16 King, above, at [40]. -- 5 of 9 -- 6 The Tribunal’s findings and the evidence from Darren Smith Painting [38] The passages from the 10 December transcript quoted above include a finding that the evidence contained in an invoice from “Darren Smith Painting” was “the best evidence as to the cost involved in removal …”. [39] If that finding was to be made, it needed to grapple with and explain aspects of contradictory documentary evidence emanating from that firm. The contradictions are intriguing to say the least. [40] Prior to the Smith quotation, a quote had been obtained from a firm called Camco on 11 September 2021. The quote was for $18,750.84 exclusive of GST. The quote specified it was for an “internal house repaint” before going on to particularise a number of items, one of which was “[r]emove wall and ceiling hooks and plaster patch and sand the area ready for painting”. That quote was rejected. [41] On 14 September 2021, Darren Smith Painting provided a quote for $7,700 including GST. Notably, it too specified it was “for the painting of interior”. The Smith quotation was accepted. [42] That quote too went on to particularise items contained in the quote. However, no specific item referred to removal of hooks and consequent patching (although reference was made to “gap fill cracks, defects will require a patch, holes puttied”). [43] No quotation from Darren Smith Painting – or anyone else – was confined to the removal of hooks and repair of adhesions. [44] The invoice from which the Tribunal quoted is labelled on its face “INV-2009”. It is one of two documents labelled “INV-2009”. The contents of the two documents are very different. [45] The invoice “INV-2009” quoted by the Tribunal is dated 27 September 2021. It is for an amount of $7,700 including GST – that is for the whole of the amount quoted. [46] That invoice lists three pieces of work and three individual billed amounts for that work: Patched, repaired and painted holes throughout the property including Living Room, Behind doors and in Bedrooms. Supply of labour, paint and materials. $2,545.45 97 x Command Hooks (sticky adhesive hook) removed, patched, repaired and painted Supply of labour, paint and materials $3,363,64 Painting remainder of the property that was requested by the owner Supply of labour, paint and materials $1,090.91 -- 6 of 9 -- 7 [47] The above invoice INV-2009, relied upon by the Tribunal, represents the first time the asserted cost of removal of hooks had been particularised. [48] It will be observed that, on its face, the invoice suggests that patching and repairing and removing hooks comes at a cost almost five times the cost of painting the remainder of the interior of the property. [49] It will also be recalled that Ms Holmes’ claim was amended at the outset of the hearing before the Tribunal on 6 December 2021 to claim an amount of $3,363.64 which is the amount particularised in this invoice for the removal of hooks. [50] The Tribunal had before it a document authored by Ms Holmes. It bears the same date as the invoice just quoted – 27 September 2021. The document claims from the Beales, “one half of the Quoted Paint works that are to be carried out of $3,850.00 from a $7,700 invoice”, going on to contend that this amount “is far less than is reasonable”. [51] The document claims for “works that are to be carried out” (emphasis added) on the same day that an itemised invoice issues for completed work. The document makes a claim in an amount approximately half of the sum evidenced in the Smith quotation. No reference is made in the document to the invoice or any of its itemised contents. [52] More intrigue is added to the circumstances revealed by this evidence when regard is had to a third document from Darren Smith Painting. [53] That document, which was also in evidence before the Tribunal, is on Darren Smith Painting letterhead, and is authored by “Lachlan Ironside” from “Accounts”. It is dated 12 October 2021 – the day prior to Ms Holmes’ claim being filed in the Tribunal. [54] The document states that it is: … confirming the payment of the Invoices (INV-2009, INV-2011, INV-2012) for the paint works undertaken for damage left by sticky Tab Hooks left by previous Tenants throughout the entire house. These works also included patch work completed on holes behind doors which were damaged during the tenancy agreement at 54 James Muscat Drive Walkerston. I have included a payment schedule below. [55] The source of the hearsay statements as to the derivation of the “damage” and “holes behind doors” is not given. [56] A “payment schedule” in the document itemises three invoices bearing the numbers referred to. [57] Invoice numbered INV-2009 is for an amount of $770 and is listed as having been paid on 27 September 2021. The invoice INV-2009 relied upon by the Tribunal is also dated 27 September 2021, but is for an amount of $7,700. [58] It seems abundantly clear that the discrepancy cannot be explained by a typographical error; INV-2009, and the two further invoices listed in the payment schedule, show a total payment of $7,700. [59] Invoice numbered INV-2011 is in an amount of $3,465 and is shown as having been paid on 7 October 2021. The next listed invoice, INV-2012, is also in an amount of $3,465 and is said to have been paid on 11 October 2021. [60] In summary, according to the payment schedule issued from “accounts” the total amount of $7,700 was paid in three instalments – $770 was paid on 27 September; -- 7 of 9 -- 8 $3,465 was paid on 7 October 21 and the third and final payment of $3,465 was made on 11 October 2021. [61] The evidence reveals the invoice upon which the Tribunal relied as “the best evidence” is anomalous. It is inconsistent with evidence from the same firm’s own accounts department. [62] The Tribunal made no reference to the matters just referred to either in the course of “argument” on 6 December or in the reasons given on 10 December. The question of how an Invoice bearing number INV-2009 for $7,700 can be the “best evidence of the cost of removal” in light of the other evidence from Darren Smith Painting and the statement of Ms Holmes remains unanswered. [63] No evidence is offered by Ms Holmes, Raine & Horne, Darren Smith Painting – or anyone else – in explanation of these discrepancies. Ms Holmes bore the onus of establishing her claim before the Tribunal. [64] There was no evidence before the Tribunal evident from the record as to whether the repainting of the entire interior of the property was required as a result of the alleged hooks and adhesions or whether, as the Beales asserted, the repaint was done in contemplation of, and for the purposes of, the resale of the property by Ms Holmes (or indeed as a remedy for fair wear and tear). [65] Ms Holmes made no case that the asserted repairs and the repainting were done in contemplation of the property being leased by her. The evidence reveals the property was re-sold by Ms Holmes in November 2021 – that is about four months after it was purchased in July and, if the evidence of Mr Ironside is accepted, within weeks of the final payment for painting the interior having been made. Can and should this Tribunal substitute its own decision? [66] The inordinate volume of appeals before the Tribunal is not matched by resources sufficient to deal with them. A consequence is that an appeal lodged in March 2022 consequent upon an order made on 10 December 2021, has only now been dealt with on the papers. [67] Both the interests of justice and expedition suggest that if this Tribunal is able to substitute its own decision, that course should be adopted. [68] Errors of law have earlier been identified and the applications for leave and the appeal succeed on the basis of those errors of law. Once the Tribunal’s order is set aside in consequence, this Tribunal is able to substitute its own decision, but only on the basis of undisturbed factual findings made below.17 [69] It could perhaps be contended that this Tribunal should find that on the evidence before it, Ms Holmes has failed to satisfy the onus cast upon her of establishing a basis for the awarding of compensation and its quantum. [70] However, that conclusion assumes factual determinations that have not been made. [71] The evidence relating to invoices from Darren Smith Painting and, consequently, a true picture of any compensation that might be ordered is only one example – albeit an important example – of an issue in respect of which factual findings are absent. 17 QCAT Act, s 146; Albrecht v Ainsworth & Ors [2015] QCA 220, at [94]. -- 8 of 9 -- 9 [72] Regrettably, it seems to this Tribunal that discrepancies in what is regarded as crucial aspects of the evidence, and the complete absence of factual findings relevant to the issues joined between the parties, renders this Tribunal unable to make relevant determinations and effect a just result between the parties.18 [73] It is also not known if the money ordered to be paid pursuant to the original Tribunal’s decision has in fact been paid or what steps, if any, have been taken to have it paid. [74] Regrettably, the matter must be returned to the Tribunal sitting at Mackay for reconsideration. [75] Assuming a Magistrate will sit as the Tribunal on the redetermination, those proceedings should be heard by a Magistrate other than the Magistrate who heard the original application. Orders [76] It is ordered: Leave to appeal is granted. The appeal is allowed. The matter be returned to the Tribunal sitting at Mackay for reconsideration including the hearing of further evidence. Pursuant to s 146(c)(ii) of the Queensland Civil and Administrative Tribunal Act 2009, the Tribunal hearing the redetermination be constituted by a Member other than the Member who heard the proceedings appealed from. 18 See, for example, Croucher, above. -- 9 of 9 --