First National Real Estate v Riordan [2020] QCATA 54

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: First National Real Estate v Riordan [2020] QCATA 54 PARTIES: FIRST NATIONAL REAL ESTATE (applicant/appellant) v KELLY RIORDAN (respondent) APPLICATION NO/S: APL175-19 MATTER TYPE: Appeals DELIVERED ON: 21 April 2020 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Richard Oliver ORDERS: Leave to appeal is refused. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – DENIAL OF NATURAL JUSTICE – residential tenancy matter – where respondent sought a return of the tenancy bond – where applicant contends denial of natural justice – whether tribunal addressed and considered the applicant’s claim to part of the residential tenancy bond – whether any basis to interfere with the tribunal’s findings of fact – whether any ground established to grant leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39 Terera & Anor v Clifford [2017] QCA 181 APPEARANCES: 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 This appeal concerns a decision of the tribunal, in its minor civil dispute jurisdiction, about the distribution of rental bond in respect of a residential tenancy agreement entered into between Ms Riordan and First National Real Estate as agent for the owner of residential premises at Raceview in Ipswich. Ms Riordan filed an application for a -- 1 of 5 -- 5 minor civil dispute claiming a return of the bond of $1,320.00, and additional sums she says were agreed to be paid by way of compensation to her during the course of the tenancy. The matter came on for hearing before an Adjudicator on 18 June 2019 and after taking evidence from both Ms Riordan and a representative of the respondent, Ms Walton, the learned Adjudicator made a decision that the full bond be refunded to Ms Riordan and that in addition, she be paid $830.00 to compensate her for excess electricity charged because of a faulty air conditioning unit. On 9 July 2019 First National filed an application for leave to appeal or appeal that decision, setting out grounds of appeal which are as follows: 1. Applicant was awarded reimbursement for items claimed to have been purchased – there was no evidence of said purchase/s requested by the tribunal; 2. The counter application lodged by First National Realty Ipswich was not considered or referenced. This is considered to go against the principals [sic] of natural justice and we therefore request an appeal be granted so that natural justice can be served. Appeal from a minor civil dispute, s 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) provides that an appeal against the decision can only be made if the party has first obtained leave of the appeal tribunal. For the appeal tribunal to give leave to appeal, the appellant must identify some error of law or other good reasons to interfere with the decision of the original tribunal as constituted. The issues raised on the question of whether to grant leave to appeal have been summarised in the recent case of Terera & Anor v Clifford;1 they are whether: (a) an appeal is necessary to correct a substantial injustice; (b) there is a reasonable argument that there is an error to be corrected; and (c) on the question of whether leave to appeal might be given, the court usually makes some preliminary assessment of the prospects of the proposed appeal. As was said in Queensland Building & Construction Commission v Meredith, there dealing with an appeal from the appellate tribunal of QCAT: Section 150(3) of the QCAT Act permits an appeal to this Court against a final decision of the Appeal Tribunal only on a question of law and only 1 [2017] QCA 181; see also Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39. -- 2 of 5 -- 5 if the party who wishes to appeal has obtained leave to appeal from this Court. The very structure of this provision forcefully implies, first, that leave to appeal may be given only with respect to a question of questions of law and, secondly, that in considering the exercise of the discretion to grant leave to appeal, this Court will have high regard for the prospects of success that the applicant for leave has of demonstrating error on the part of the Appeal Tribunal with respect to the question or questions of law concerned. There must be reasonable prospects of success to warrant a grant of leave.2 There is one other consideration. The application for leave to appeal or appeal is not a rehearing on the merits of the matter that was before the primary decision maker/s to achieve a different outcome. The second ground of appeal clearly raises an issue of law if it can be established that First National was denied natural justice or procedural fairness in the course of the hearing responding to the case made by the applicant for refund of the bond and compensation. The applicant has provided written submissions in respect of the appeal filed on 2 September 2019 and in paragraph 1 sets out a schedule of the monies claimed at the original hearing. In support of that, there is a submission as to why these monies are payable but the submission does not address how First National was not given an opportunity to present its case. There is a submission in paragraph 8 in which it contends that First National ‘did not believe the counter application submitted was considered during this hearing’. The transcript of the proceeding, which First National may not have had at the time it filed its application for leave to appeal, demonstrates that its counterclaim was considered. Ms Walton represented First National at the hearing. There is the following exchange at page 7 of the transcript: ADJUDICATOR: Okay, stop. Now, if I could now turn to you, please, Ms Walton. What claims are you making? MS WALTON: So we’re just making to know that we would like, obviously the bond to be refunded to our office to cover the items and getting the property down to entry condition. ADJUDICATOR: Well, tell me – what are those items? MS WALTON: So there was cleaning required, based off the exit report of $120. ADJUDICATOR: Yes. MS WALTON: Carpet cleaning was required of $154. ADJUDICATOR: Yes. MS WALTON: There was some yard mowing that had to be done, $125. ADJUDICATOR: Yes. 2 Terera & Anor v Clifford [2017] QCA 181, [10] (footnotes omitted). -- 3 of 5 -- 5 MS WALTON: There is also in the bedroom off the kitchen, the carpet needs to be replaced because there is a smell of pet urine. ADJUDICATOR: Has it been replaced? MS WALTON: It hasn’t at this stage, no, but that is $330 so that’s just pending. ADJUDICATOR: Has the property been re-tenanted? … MS WALTON: Not at the moment. The property is for sale. ADJUDICATOR: Yes next. MS WALTON: And then there is the wall repair to where the air con is. ADJUDICATOR: Why is that needed? MS WALTON: So the air conditioner was leaking, which, you know, we know. ADJUDICATOR: It’s not the tenant’s problem yes. MS WALTON: But the tenant had used the air con while it was leaking and, in turn, has obviously caused more damage inside the wall, which has made it soft and mouldy. We had the insurance assessor come out and he has confirmed, although not covered under insurance, that his [sic] is malicious damage. But will look at replacing the air con but not the wall, so the owner is seeking payment for that. There was during the course of the hearing further discussion about the tenant’s liability for replacing the damaged wall as a result of water leaking from the faulty air conditioner. First National accepted that the air conditioner was faulty, and ultimately the Adjudicator found that after three attempts to repair the air conditioner, it was not a cost that ought to have been borne by the tenant. Furthermore, it was recognised that the air conditioner was used during the peak heat period of summer between January 2019 and 10 May 2019. These findings of fact were open to him on the evidence. The point of all the above is, that First National’s counterclaim was considered, there were submissions made in respect of each of those claims and ultimately the Adjudicator made a finding of fact that the evidence fell short. Ms Riordan took possession of the premises when they had not been cleaned, it was agreed she would clean the premises when she went in and for that there was to be some reimbursement. All of these matters were considered thoroughly during the course of the hearing of this minor civil dispute, bearing in mind that it is the obligation of the tribunal: In a proceeding for a minor civil dispute, the tribunal must make orders that it considers fair and equitable to the parties to the proceeding in order to resolve the dispute but may, if the tribunal considers it appropriate, make an order dismissing the application.3 In the application for leave to appeal, First National’s submissions do not address those matters upon which the appeal tribunal will give leave. It simply makes a further submission as to why the tribunal should make orders that the bond be refunded to First National for the various costs to be taken out, and additional costs. Furthermore, 3 QCAT Act s. 13(1) -- 4 of 5 -- 5 in the appeal, rather than at first instance, First National have sought to file and rely on further evidence to support its case. That could have been done at the original hearing. As for the first ground of appeal, the tribunal does not require strict proof although it is always helpful to have evidence to support any claims made. What was before the tribunal was an internal email between First National staff which supported Ms Riordan’s position that the premises were in a state of disrepair when she took up occupancy and a credit was to be given to her because of that, and also the fact that the oven was not working during the whole of the tenancy. Also there was a credit for the extra electricity costs. The learned Adjudicator considered all of these matters and addressed them in his reasons. As no error of law has been identified, and there is no obvious reason to interfere with the learned Adjudicator’s findings of fact4 during the course of the hearing, and his decision, leave to appeal is refused. Order 1. Leave to appeal is refused. 4 Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22. -- 5 of 5 --