Cummins & Anor v Armitt & Anor [2019] QCATA 79

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Cummins & Anor v Armitt & Anor [2019] QCATA 79 PARTIES: BRIAN CUMMINS CANDICE ROBINSON (applicants/appellants) v JASON ARMITT SARAH CHURCHILL-GREEN (respondents) APPLICATION NO/S: APL249-18 ORIGINATING APPLICATION NO/S: MCDT 256/18 MATTER TYPE: Appeals DELIVERED ON: 3 June 2019 HEARING DATE: 20 March 2019 HEARD AT: Brisbane DECISION OF: Justice Carmody ORDERS: The application for leave to appeal is refused and the application is dismissed. CATCHWORDS: APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – COMPENSATION – where tribunal finding that disputed items met the description of fair wear and tear – where applicants contend for characterisation error – where not reasonably arguable on appeal. Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 188(4) Queensland Civil and Administrative Tribunal Act 2009 (Qld) APPEARANCES & REPRESENTATION: Applicant: S Lester, Mackay Rentals Pty Ltd, for the applicants Respondent: Ms S Churchill-Green for the respondents. -- 1 of 2 -- 2 REASONS FOR DECISION [1] The tribunal awarded the applicant compensation of $1,414.70 instead of the $2,850.70 claimed for tenant’s breach of a residential tenancy agreement. [2] The alleged legal error is misapplication of s 188(4) Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTAA) which imposes a general obligation of tenants to, as far as possible, leave the premises and inclusions in the same condition at the end of the term as they were at the start, excepting fair wear and tear. [3] The thrust of the applicants’ submissions is that the tribunal mistakenly found the disputed items met the description on “fair wear and tear” when on a proper assessment they were reasonably incurred expences to paint the walls and wardrobe doors and repair cracked tiles for reletting. [4] What is and is not fair wear and tear is a question of fact and degree which unlike questions of law have no uniquely right answer in all circumstances. [5] Reasonable minds can reach different even opposite conclusions without either being demonstrably wrong or manifestly right. [6] Findings of fact can be an error of law if they are not open on the evidence or different from the only rational conclusion a logical interpretation of the evidence most favourable to the respondent permits. [7] Otherwise, facts appeals are unlikely to succeed unless the conclusion or inference in issue is contrary to incontrovertible direct evidence or compelling inferences pointing in the opposite direction. [8] Neither test is met by the applicant here because there is no clear indication that the tribunal’s characterisation of the disputed items was outside the range of rationally possible conclusions supported by the evidence. [9] Even if the appeal tribunal disagreed with the tribunal’s interpretation of the evidence the appeal tribunal has no authority to substitute its opinion for the tribunals because its opinion in contestable matters is not accorded any more significance by the law and is just as likely to be as right or wrong as the tribunal is. [10] As the application does not have reasonable prospects of overturning the orders in issue or achieving a substantially better result on appeal leave is not justified having regard to the stated objects in the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and the public interest in finality. [11] For these reasons the application is dismissed. -- 2 of 2 --