Bates v Valentine & Anor [2019] QCATA 131

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Bates v Valentine & Anor [2019] QCATA 131 PARTIES: MARK BATES (appellant) v APPLE VALENTINE (respondent) NICHOLA VALENTINE (respondent) APPLICATION NO/S: APL313-18 ORIGINATING APPLICATION NO/S: Brisbane MCDT1151/18 MATTER TYPE: Appeals DELIVERED ON: 30 August 2019 HEARING TYPE: On the papers HEARD AT: Brisbane DECISION OF: Dr J R Forbes, Member ORDERS: Leave to appeal is granted. The appeal is allowed in part, to the extent indicated in Order 3. The orders of the primary Tribunal are varied by deleting the words and figures: ‘The amount owed by the Respondent is $3,200.00’ and substituting therefore: ‘The amount owed by the Respondent is $1,624.00’ No order as to costs. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – leave to appeal – minor civil dispute – tenancy claim – where tenants claimed refund of moneys overpaid and compensation for defective appliances and inadequate gardening maintenance – where landlord counterclaimed for excess water rates, unsatisfactory state of premises on exit and disallowance of compensation awarded – where special limitation period applied – where compensation reduced to comply with limitation period – where leave to appeal granted and appeal allowed in part -- 1 of 5 -- 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 61, s 93, s 142 Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 166, s 169, s 410 Caruana v Harcourts Proactive Results Pty Ltd [2012] QCATA 55 Fox v Percy (2003) 214 CLR 118 Masinello v Parker & Anor (No 2) [2013] QCATA 325 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 Nobile v Illidge & Anor [2019] QCATA 89 Queensland Building and Construction Commission v Watkins [2014] QCA 172 W (an infant) In Re [1971] AC 682 Watkins v Queensland Services Building Authority [2013] QCAT 535 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 At all material times the intending1 appellant Mark Bates and B Field (‘Bates’) were the owners of residential premises at 43 St Helens Road, Mitchelton, Brisbane (‘the premises’), and the respondents (‘the Valentines’) were their tenants. The Valentines occupied the premises under a residential tenancy agreement which commenced on 29 March 2016, and continued under a second and similar agreement from 29 March 2017 to 27 March 2018. Under a term of the latter agreement the Valentines lodged a rental bond of $2,320. On 23 May 2018 the Valentines began these proceedings claiming a total of $6,067,2 a return of the bond moneys (less $243) and compensation3 for breaches of a yard maintenance term, and another loss of amenity, namely a faulty stove.4 After discussion between the Adjudicator and the Valentines at the hearing the claim was reduced to $5,408.5 At the same time attention was drawn to a special limitation period of six months.6 That ruling is not challenged. Bates counterclaimed $3.097.90 for one day’s rent, cleaning, water and electricity bills, and the filing fee.7 1 Leave to appeal is required by QCAT Act, s 142. 2 As confirmed in Transcript of hearing 12 October 2018 (‘T’), page 3, line 14. 3 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘RTRA’), s 410(1)(e). 4 T page 5, line 36. 5 T page 6, line 21; page 50, line 22. 6 T page 41, line 15. 7 Counter application filed 31 August 2018. -- 2 of 5 -- 3 The hearing took place on 12 October 2018. It resulted in an award of $2,100.73 to the Valentines, and $219.27 to the lessor, to be deducted proportionally from the bond of $2,320. On the counterclaim, the rent and electricity claims were allowed, the water bill was disallowed, and the cleaning charge was substantially reduced. Of those claims, only the water charge remains in dispute. Subsequently, the order of 12 October 2018 was corrected.8 Bates was then ordered to pay the Valentines $2,320. From that decision Bates now seeks leave to appeal, claiming that the lessors are entitled to $1,854.50. That amount comprises $179.06 for water charges, the reversal of an award of $2,288 to the Valentines for ‘insufficient’ yard maintenance and $338.20 filing fee on the application for leave. The water charges were the subject of discussion between the Adjudicator and Bates’ counsel. The latter conceded that Bates’ claim was limited to ‘excess usage’.9 There is no definition of ‘excess’ in the agreement.10 The Adjudicator rejected that claim: [G]iven that it’s a seven-family home11, I don’t think that is excessive water usage, frankly. So on that basis ... while it may be rather tough for the lessor, that can’t be justified in this case.12 And further: What I am saying is that there are seven people there, and they’ve used less than the average for the community ... [T]he water usage is not payable in this case. So anything allocated to water usage ... should be credited to the tenants.13 ... [T]hey’ve got well over twice an average household. So I’m satisfied that they really don’t have excess water usage. I’m also satisfied the premises weren’t water efficient14, because it says so on the entry condition report.15 Those views are repeated in the reasons for the decision.16 That was a finding of fact and degree that the Adjudicator was entitled to make. There was evidence upon which the finding could reasonably be made. An application for leave to appeal is not an occasion to ‘second guess’ the findings of fact at first instance. Fact-finding was the Adjudicator’s task. Findings of fact are not normally be disturbed if they have rational support in the evidence, even if another reasonable view is available.17 A decision cannot properly be called erroneous, simply because one 8 QCAT Act, s 135. 9 T page 49, line 47. 10 Presumably it means not ‘reasonable’ within the meaning of the RTRA, s 169(4). 11 The Tribunal, in exercising a discretion under s 149(4) of the RTRA, must have regard to ‘the number of persons occupying the premises’: see s 149(4)(e). 12 T page 43, lines 23-25. 13 T page 49, lines 18-23. 14 As to the significance of the expression ‘water efficient’ see RTRA, s 166(3). 15 T page 50, lines 5-8. 16 T page 51, lines 38-47; page 52, lines 1-5: ‘That [$1329.17] should be credited to the tenants’ account’. 17 Fox v Percy (2003) 214 CLR 118, 125-126. -- 3 of 5 -- 4 conclusion has been preferred to another possible view.18 Insofar as the application seeks leave to appeal the water-usage issue, it must be dismissed. The dispute now centres on the $2,288 awarded to the Valentines for ‘insufficient’19 gardening services. Materially the 2017-2018 lease provides: The lessor is responsible for garden maintenance and it is agreed the company engaged by the lessor... will be attending the premises for the purpose of maintaining the gardening areas including mowing the lawn and removing garden rubbish, at the lessor’s cost, 2 times per month.20 Evidently the expression ‘garden maintenance’ is more comprehensive than ‘mowing’. This interpretation is confirmed by the presence of the phrase ‘including the mowing’ in the relevant clause. Clearly this special and somewhat unusual provision was of considerable important to the Valentines, who complained to Bates’ agent several times about its inadequate observance. According the Valentines the garden at one stage was so overgrown that they cleaned it up themselves.21 One contractor did ‘a really poor job’,22 and there was a general lack of maintenance. They tendered photographs showing weeds and overgrowth untouched by merely mowing. It is implicit in the reasons for decision that this evidence was substantially accepted. That, too, was a finding of fact and credit for the Adjudicator to make, and, for reasons already given, it is not for the appeal Tribunal to canvass it. For unsatisfactory garden maintenance the Valentines claimed compensation of $176 per fortnight for 6 months, a total of $2,288.23 On this head of claim the Adjudicator decided: The lessor is responsible for garden maintenance ... It’s clear that that was not done during the period of the tenancy. Certainly it wasn’t done sufficiently. On the basis that only the last six months should be allowed before the application is made, I will allow the claim of $2288 in favour of the tenants.24 The reference to six months is an allusion to subsection 419(3) of the RTRA, which provides: The application [regarding a breach of the tenancy agreement] must be made within 6 months after the ... tenant ... becomes aware of the breach. In an application of this rule it seems appropriate to treat every periodic supply of services as a separate event, and Bates does not contend otherwise. 18 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611, [131]; In Re W (an infant) [1971] AC 682, 700. 19 T page 51, line 2 (reasons for decision). 20 General tenancy agreement commencing 29 March 2017 addendum A Item A2, Garden Maintenance. 21 T page 10, line 1; page 11, line 33. 22 T page 11, line 22. 23 Based on the monthly charges of a second contractor, Swift Lawn Garden Care. 24 T page 51, lines 1-4. -- 4 of 5 -- 5 The Valentines vacated the premises on 28 March 2018, but they did not did not make their claim until 23 May 2018, when their Minor Civil Dispute was filed. It follows that special period of limitation prescribed in section 219 reached back to about 23 November 2017.25 The accounts of Swift Lawn Garden Care, in evidence, show that it provided a service on 21 November 2017. Assuming that services were provided from that date to the tenants’ departure on 28 March 2018. Calculated at the adjudicated rate of $176 per visit – a judgment of fact and degree for the Adjudicator - only $1,584, and not $2,288 is claimable for breach of the garden-maintenance term. Accordingly the net amount owing by Bates to the Valentines is $1,624, not $2,320, as stated in the corrected decision. If it were suggested that the limitation period of six months might, as a matter of discretion, be extended under section 61 of the QCAT Act, that submission would be bound to fail. The Tribunal’s jurisdiction under section 61 is limited to rules that are purely procedural, whereas the statutory limit in section 419 of the RTRA is substantive and invariable. It is not imposed by the legislature, not the Tribunal. Once the 6 months period of limitation expires, the right of action under section 419 ends and cannot be revived. I dealt with this distinction in Watkins v Queensland Services Building Authority,26 subsequently upheld in the Court of Appeal.27 The same principle has been applied to section 419(3) of the RTRA in other decisions of this appeal Tribunal.28 Accordingly the decision of the primary Tribunal must be amended by deleting the words and figures: ‘The amount owed by the Respondent [is] $3,200’ and substituting the words and figures: ‘The amount owed by the Respondent [is] $1,624’. There will be an appropriate order. As the application for leave was successful only in part there will be no order as to costs. Orders The orders are as follows: 1. Leave to appeal is granted. 2. The appeal is allowed in part, to the extent indicated in Order 3. 3. The orders of the primary Tribunal are varied by deleting the words and figures: ‘The amount owed by the Respondent is $3,200’ and substituting therefore: ‘The amount owed by the Respondent is $1,624.’ 4. No order as to costs. 25 According to the Acts Interpretation Act 1954 (Qld) Schedule, ‘month’ means ‘calendar month’. 26 [2013] QCATA 535. 27 Queensland Building and Construction Commission v Watkins [2014] QCA 172. 28 Caruana v Harcourts Proactive Results Pty Ltd [2012] QCATA 55; Nobile v Illidge & Anor [2019] QCATA 89; Masinello v Parker & Anor (No.2) [2013] QCATA 325, [9]. -- 5 of 5 --