Bleys v Patterson [2019] QCATA 86

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Bleys v Patterson [2019] QCATA 86 PARTIES: IAN BLEYS (applicant/appellant) v PATRICIA PATTERSON (respondent) APPLICATION NO/S: APL189-18 ORIGINATING APPLICATION NO/S: MCDT 63/18 MATTER TYPE: Appeals DELIVERED ON: 3 June 2019 HEARING DATE: 29 January 2019 HEARD AT: Brisbane DECISION OF: Justice Carmody ORDERS: 1. Leave to appeal is refused. 2. Application is dismissed. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – COMPENSATION – where fruit trees planted by long term tenant were removed by the lessor’s agents before end of fixed tenancy – where on tribunal facts the trees exchanged for garden clearing work at tenant’s request – whether tenant reneged – whether applicant entitled to compensation for loss – no question of principle or demonstrated error – where leave refused. Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 13(1) Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 419(1), 420, 421 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: Self-represented -- 1 of 3 -- 2 REASONS FOR DECISION [1] The issue is whether the tribunal’s decision to refuse the applicant's compensation claim is marred by vitiating error or unfairness calling for correction on appeal. [2] QCAT appeals are limited by subject matter to three categories: questions of law, fact or mixed propositions. [3] A pure question of law commonly involves ascertaining the general rule, norm, criteria, principle or test to apply for resolving a dispute over the legal meaning and effect of statutes or transactions. There is only ever one uniquely right answer. [4] A question of fact by contrast involves conducting a self-informing rather than party controlled inquiry into whether, how, when or why something probably happened in the past or is likely to occur in the predictable future. There will invariably be different equally rational even opposite but no less permissible interpretations of the same body of evidence reasonably open without any being demonstrably right or manifestly wrong. They are especially problematic when they are value, degree or credit based. A sense of grievance is not a valid reason to overturn such a finding on appeal. Nor is a mere difference of opinion. [5] Mixed questions involve both issues of law and fact. [6] The distinction determines the scope and procedures of the appeal process. Law only appeals are for correcting vitiating mistakes in identifying or applying the proper law to the facts and decided on the basis that the tribunal findings of fact. They are not an occasion for reviewing the relative merits of the rival cases presented by the parties for the tribunal’s consideration. Facts appeals however are by way of rehearing or reassessment of the tribunals material conclusions based on the same or, if allowed, additional materials. [7] The applicant wants leave to appeal the tribunal’s decision that it was fair and equitable to dismiss his compensation claim for property loss in a residential tenancy matter. He has the burden of demonstrating the tribunal either misunderstood the correct law or misapplied it to the probable facts. [8] For policy and functional reasons a dissatisfied party in this jurisdiction requires leave to appeal adverse tribunal decisions or unexpected litigation outcomes in a minor civil disputes. The indispensable pre-conditions are demonstrated error and good prospects of a better result on appeal. Those requirements acknowledge that the demands of practical justice can be met without all arguable mistakes or doubtful decisions made at summary levels of the legal system being corrected. The context [9] The applicant planted six (6) citrus and two (2) mango trees at $50 each along the boundary of the residential premises he rented from the respondent between 2005 and 2016. The respondent’s husband and son-in-law removed all but one of the trees a few weeks before the term of the tenancy ended. They say at his request to reinstate the yard before vacating. He says it was without authority and applied to the tribunal for $1,155 as compensation for loss. -- 2 of 3 -- 3 [10] The case for the applicant was framed as a tenancy matter within the tribunal’s minor civil dispute jurisdiction for a decision that can be made under a provision of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act). He had the onus of proving a right to compensation for the trees or their value based on the lessor’s breach of the tenancy agreement under ss 419(1) – 421 RTRA Act or possibly s 429 RTRA Act. On the presented facts, however, the applicant’s claim was not really about breach of contract but based on the civil tort of intentional trespass to someone else’s property. [11] The tribunal’s general dispute resolution powers in tenancy matters are derived from Ch 6 Pt 2 Div 3 RTRA Act. Compensation applications about breach of a tenancy condition can be made before or after the end of the agreement but within 6 months of knowledge of the contravention. The orders the tribunal may (not must) make including for the payment of money are in s 420 RTRA Act and the mandatory considerations in s 421 RTRA Act. Any order including dismissal must also meet the fair and equitable requirement in s 13(1) QCAT Act. [12] As the tribunal noted the trees arguably became presumed fixtures in the eyes of the law when they were attached to the land making the applicant liable for waste if he removed them without the lessor’s permission. [13] Even if they were so-called tenant’s fixtures and still his to take with him when he left the law would deem them to be a gift to the respondent if he had simply left them behind on expiry of the lease. [14] The husband deposed to the effect that the applicant was initially happy for his son in law to have all the citrus and one of the mango trees but after they were potted up changed his mind and decided that he “…would now like to keep them”. The tribunal concluded that the applicant voluntarily transferred his proprietary interest in them to the son in law in consideration for effort and that the lessor was not in breach of tenancy related obligation. [15] There is no error in making a rational and reasonable choice between rival explanations of disputed past events. [16] The applicant does not have a sufficiently arguable ground of appeal to justify a grant of leave to appeal the tribunals credit based preference for the respondent’s explanation of the circumstances over his. [17] Leave refused. Application dismissed. -- 3 of 3 --