Durrand v Scia Pty Ltd [2022] QCATA 48

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Durrand v Scia Pty Ltd [2022] QCATA 48 PARTIES: MICHAEL JAMES DURRAND JAELENE DURRAND (applicants/appellants) v SCIA PTY LTD (respondent) APPLICATION NO/S: APL073-20 ORIGINATING APPLICATION NO/S: MCDT195-19 Rockhampton MATTER TYPE: Appeals DELIVERED ON: 26 April 2022 HEARING DATE: 19 April 2022 HEARD AT: Brisbane DECISION OF: Judicial Member D J McGill SC ORDERS: 1. Application for leave to appeal from the decision of the Tribunal of 11 February 2020 dismissed. CATCHWORDS: LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – OBLIGATIONS, PROHIBITED MATTERS AND PROTECTION FOR LESSEES – OTHER MATTERS – cleaning of premises and pest control treatment on vacating premises – whether needed – whether costs reasonable – whether findings at first instance not reasonably open on the evidence – leave to appeal refused Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3)(a)(i) Craig v Mark Kelada Auto Sellers [2016] QCATA 48 Fox v Percy (2003) 214 CLR 118 Irving v Pfingst [2021] QCA 280 APPEARANCES & REPRESENTATION: Applicants: Self-represented Respondent: Self-represented -- 1 of 5 -- 2 REASONS FOR DECISION [1] Mr and Mrs Durrand, to whom I shall refer as the appellants, were formerly tenants of a house managed for the owner by the respondent, Scia Pty Ltd, which carried on business under the name Cooke and Associates Property Agents.1 After the tenancy ended, the bond was returned to the appellants, but the respondent as agent brought a claim in the Tribunal seeking compensation of $5,062.45 for breach of the tenancy agreement. At the conclusion of a hearing on 11 February 2020 a Member2 decided that the appellants pay the respondent $2,160.50 within twenty-eight days. The appellants seek leave to appeal from that decision. [2] Because this matter was a minor civil dispute, leave is required to appeal to the Appeal Tribunal.3 As a general proposition, when leave to appeal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage.4 In deciding whether grounds for leave to appeal have been shown, it is relevant to consider that the proceeding was a minor civil dispute, and the obligation on the Tribunal was to make orders it considered to be fair and equitable to the parties to the proceeding in order to resolve the dispute: the QCAT Act s 13(1). The Tribunal was also required to comply with the QCAT Act s 28 and s 29. An Appeal Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the finding, and it is not contrary to compelling inferences.5 Background [3] The tenancy was regulated by the provisions of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (“the Act”) and a written agreement in Form 18a for a term from 6 October 2018 to 5 April 2019. The agreement provided that, at the end of the tenancy, the tenant “must leave the premises, as far as possible, in the same condition they were in at the start of the tenancy, fair wear and tear excepted.”6 In addition, there were special terms of the agreement which provided: (a) Keep the walls floor, doors and ceilings of the premises free of nails screws or adhesive substances, unless otherwise agreed by the lessor in accordance with clause 27. (Clause 46(1)(f)) (b) The tenant agreed to have all fabric curtains and blinds professionally cleaned. (Special Term 5.) (c) The tenant agrees that it is a requirement to engage a pest control contractor to perform internal pest control upon vacating. (Special term 11.) [4] The appellants say they vacated the premises on 5 April 2019. The respondent provided a dispute resolution request to the Residential Tenancies Authority on 17 1 The company did so as trustee of a trading trust. 2 A Magistrate sitting as a Member under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”) s 171(2). 3 The QCAT Act s 142(3)(a)(i). 4 Crime and Corruption Commission v Lee [2019] QCATA 38 at [12], citing appellate authority. See also Campbell v Queensland Building and Construction Commission [2021] QCATA 34 at [17]. 5 Craig v Mark Kelada Auto Sellers [2016] QCATA 48 at [13]. 6 Agreement clause 37, the Act s 188(4). -- 2 of 5 -- 3 July 2019. On 23 July 2019 the Authority advised the respondent that the dispute was unsuitable for conciliation through its dispute resolution process. The respondent’s application was filed in the Tribunal on 19 August 2019, less than six months after the premises were vacated. The claim was particularised thus: (a) Cleaning the house $1,710 (b) Cleaning the curtains $198 (c) Pest control treatment $247 (d) Cleaning up the yard $343 (e) Replacement Pool drain cover $39.95 (f) Replacement pool rake $27.50 (g) Painting inside $2,365 (h) Turf replacement $132 [5] The Member disallowed the claims for cleaning up the yard, the replacement pool equipment, the painting and the replacement turf. The Member allowed the other claims, and corrected the amount claimed for cleaning the curtains to $203.50, the amount shown on an invoice. Hence the amount of the decision. Grounds of appeal [6] In the application for leave to appeal the appellants alleged a breach of natural justice in that they were not given the chance to respond to all the evidence, that no reasonable decision maker would prefer the evidence of the agent over the evidence of the appellants, that the cost of pest control was excessive, and that there had been an agreement between the parties that the curtains would not be cleaned. [7] There is nothing in the transcript of the hearing to suggest that the appellants were denied natural justice. The affidavit of the male appellant sworn 7 February 2020 alleged that when the affidavit of the respondent’s witness was served, it did not include Exhibit JCA7, an exit report prepared by another employee of the respondent. No complaint about this was raised by the appellants during the hearing, although the male appellant did mention at p 11 that he did not have a copy of it. The appellants sought from the registry a copy of that exhibit and it was forwarded (in a number of emails, because of its size) only on 3 March 2020, after the decision. [8] Another copy of the exit condition report, which became Exhibit JCA7, was one of the documents attached to the original application to the Tribunal, a copy of which was emailed to the appellants by the registry on 29 August 2019, as appears from the copy emails on the Tribunal file. In oral submissions the appellant claimed not to have received a copy of the exit condition report at that stage either. Perhaps its absence at that point was not obvious, but he could easily have asked for a copy before the hearing (as he did after the hearing), or complained at the hearing about a failure to serve it, and asked then. Before me he said its absence was not of huge concern. If there was a technical breach of natural justice here, it did not produce an injustice and is not a basis for granting leave to appeal. [9] The focus of the appeal was on the proposition that it was unreasonable for the Member to prefer the evidence of the respondent over the evidence submitted by the appellants as to the state of the premises at the time they vacated the premises. Their -- 3 of 5 -- 4 case was that they had cleaned the premises in a way that satisfied their obligation under clause 37, so that there had been no breach of the agreement. The evidence for the respondent was in the form of an exit condition report by an employee of the respondent, an invoice by the cleaning contractors, and some photographs taken by the agent. The evidence of the appellants was in the form of their affidavits, and a statutory declaration by a parent of an appellant.7 There was no evidence which could be characterised as truly independent, and it was a matter of deciding which evidence to accept. [10] That is something which is very much a decision for a Member conducting a hearing, who has two significant advantages denied to me: the Member saw the representative of the respondent, and heard her and the appellants who appeared by telephone, and had some opportunity to make an assessment of them, and the Member saw the original photographs which had been put in evidence, whereas I have only photocopies. It appears that the Member took into account what could be seen in the photographs in arriving at his decision. [11] The appellants made extensive allegations of wrongdoing against the respondent, but the Member was clearly aware of them, and it was a matter for him to assess their significance. That an invoice from the cleaners had at one time included an item for cleaning an air-conditioner when the premises did not have one was probably the result of the use of a template which had been inadequately edited; it was a matter for the Member to determine the significance of this, and of the fact that the version exhibited to the affidavit appeared to have been the same document, with that line just crossed out. [12] Certainly there were arguments available to challenge the authenticity and reliability of the invoice, but the Member was aware of them, and none of them was so compelling as to make acceptance, on the balance of probabilities, of the proposition that the cleaners were paid the amount stated for the work described unreasonable. That the house needed a bond clean really depended on the evidence of the exit condition report, as recognised by the Member at p 14. The evidence would have been stronger if there had been an affidavit by the person who did that exit inspection, and one from the cleaners verifying what they did and when they did it, but it does not follow that it was unreasonable for the Member to act on such evidence as he had. There were no compelling inferences which would justify my interfering in the findings of the Member.8 [13] The appellants claimed that tradesmen had been working in the premises as soon as they moved out, which would have given rise to a need for cleaning. Again, this was something the Member was conscious of, but he noted that the invoice from the cleaners referred to cleaning in many places which would not have been affected by the work done by the tradesmen. He also noted that the invoice had acknowledged that some things had been adequately cleaned. The finding of the Member was reasonably open on the evidence, and no sufficient reason has been shown for making any other finding. The fact that the carpet was replaced seems to have had the effect that the obligation to pay for professional cleaning of the carpet in Clause 46(2)(a) was not enforced, as it was not mentioned in the cleaner’s invoice. 7 That declaration described a process of cleaning much less extensive than the usual bond clean, as described in the invoice from the cleaners. 8 See also Fox v Percy (2003) 214 CLR 118; Irving v Pfingst [2021] QCA 280 at [8], [96], [194]. -- 4 of 5 -- 5 [14] As to the proposition that the charge for the pest control was excessive, what was paid to a contractor was some evidence of what charge was reasonable, and the appellants had nothing to offer but a personal opinion that the charge should not have been more than $85. The acceptance of the amount claimed was a finding open to the Member, and there are no grounds to interfere. [15] The appellants submitted that the respondent had agreed at the hearing that it was agreed orally before the tenancy ended that the curtains did not need to be cleaned, because of their age. As to the alleged agreement about the curtains not being cleaned, the agent agreed that there had been some conversation about the state of the curtains, but did not say at the hearing that there was any agreement that the appellants would not need to clean them: p 6. In the event they had been cleaned, and had not fallen apart, and in the circumstances the amount charged was properly recoverable. If the curtains were old and tired at the time, as alleged by the appellants, that would not affect the obligation to have them cleaned. The Member rejected the argument that there had been an agreement to vary the tenancy agreement in this way, and there are no grounds to interfere with that finding. Conclusion [16] Overall there is no sufficient reason to grant leave to appeal. The appellants had not had a professional exit clean undertaken on the premises, which is the usual practice when tenants vacate premises, and had not had the curtains cleaned or a pest control spray done. In those circumstances, it is unsurprising that there was compensation payable by them as a result. The issues as to the amount of that compensation were resolved by the Member accepting the evidence of the respondent, on these matters.9 That was a conclusion open to him, and no sufficient grounds have been shown to interfere. In those circumstances, it is not appropriate to give leave to appeal, and the application for leave is dismissed. 9 In respect of other claims, where the evidence was weaker, the Member did not accept it. -- 5 of 5 --