Angelopoulos v Cavey [2018] QCATA 42

CITATION: Angelopoulos v Cavey [2018] QCATA 42 PARTIES: ANASTASIOS ANGELOPOULOS ANGELOS ANGELOPOULOS (Applicant/Appellant) v GAIL CAVEY (Respondent) APPLICATION NUMBER: APL356-16 MATTER TYPE: Application and Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Carmody DELIVERED ON: 27 March 2018 DELIVERED AT: Brisbane ORDERS MADE: THE APPEAL TRIBUNAL ORDERS THAT: 1. The application for leave to appeal or appeal is refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where the applicants were ordered to pay for extra cleaning after exiting rental premises – where the applicants dispute the necessity of rectification cleaning – where the applicants allege the cleaning invoice contravenes the Australian Consumer Law – where the applicants claim unfairness in the conduct of tribunal proceedings including the prejudicial effect of discrediting remarks made by the respondents – where findings of fact cannot be overturned unless irrational and unreasonable – where leave to appeal is refused QCAT Act s 142(3)(a)(i), 147(1)-(3) Fox v Percy (2003) 214 CLR 118 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 APPEARANCES and REPRESENTATION (if any): -- 1 of 7 -- 2 This matter was heard and determined on the papers without the attendance of either party in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] The applicants filed an application for leave to appeal on 28 October 2016 after being ordered to pay the respondents $385 (to be released from the bond) to cover cleaning costs. [2] The basic allegation was that the property was left in a mess at the end of the tenancy forcing the property agent to hire a bond cleaner after the applicants’ failed to rectify the issues. [3] The tribunal dismissed the applicants’ counterclaim for a $20 per week rent reduction for lost amenities for the period of the lease agreement1 describing it as a “complete fallacy”.2 The tribunal found that not raising alleged breaches during the tenancy nor seeking any renegotiation of rent was inconsistent with the applicants’ current position. [4] The applicants have requested (and been granted) extensions of time for filing submissions on multiple occasions due to ongoing health problems. The respondent is non-compliant with the last tribunal direction (8 January 2018). Procedural history [5] On 13 February 2017 the applicants were granted leave to amend their application so that Annexures B, C and D were admitted in further support of their appeal. Annexures E1 and G were not admitted. The respondent was also directed to make submissions about the applicant’s miscellaneous application to produce inspection reports and complied on 31 January 2017. [6] The applicants were allowed to add a new ground 5 to their appeal application on 30 June 2017 and make further submissions in support of all grounds. The date for compliance was extended to 9 October 2017 and again extended to 27 October 2017. [7] On 30 October 2017 the applicants were directed to ensure the respondent had a copy of their submissions filed on 23 October 2017. The respondent replied on 9 November 2017. The applicant’s time to file further material was extended to 8 January 2018. [8] On 15 January 2018 the tribunal received a miscellaneous application from the applicants requesting the inclusion of a statutory declaration dated 9 January 2018, Annexures 10, 11, 12, 13 and 14 and a response to the directions of 8 January 2018 claiming that the respondent provided false 1 From 21 July 2015 to 18 July 2016 or 52 weeks. 2 T1-12:40-45; T1-13:5-10. -- 2 of 7 -- 3 dates on its photographic evidence to the tribunal in breach of s 216 QCAT Act and ss 140, 193 and 194 of the Criminal Code (Qld). [9] The respondent has not filed a reply. The tribunal decision [10] There was no exit condition report completed by the applicants which the tribunal found was “fatal to (their) position”.3 The tribunal accepted the respondent’s photographic evidence of the condition of the property when the applicants vacated as substantiating. The tribunal rejected the applicants’ photographs for the most part because many of them were of different items in or areas on the premises. [11] The tribunal was “… satisfied on the balance of probabilities based on the evidence put before (it) that the cleaning detailed in the cleaning invoice attached to the application was necessary based upon the visual evidence of the agent’s application”.4 Leave to appeal [12] Leave is necessary to appeal a decision of the tribunal in its minor civil disputes jurisdiction.5 For a grant of leave the applicants must show an arguable case of factual, legal, mixed or discretionary error requiring correction on appeal in order to relieve against substantial injustice.6 [13] The applicants proposed 4 grounds in their original Form 39:  errors of law;  denial of natural justice;  procedural unfairness in failing to take into consideration the applicants’ disabilities; and  allowing false and misleading evidence to be admitted. [14] The grounds were solidified at a directions hearing held on 30 June 2017:  ground 1 – order made despite non-compliance with s 101 of the Australian Consumer Law (ACL);  ground 2 – failure to self-inform by refusing to adjourn the hearing to allow for more preparation time; 3 T1-10:5-10. 4 T1-10:5. 5 QCAT Act s 142(3)(a)(i). 6 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41, 46. -- 3 of 7 -- 4  ground 3 – unfairness in not giving an opportunity to explain the failure to vacate the premises earlier for alleged multiple defects;  ground 4 – admitting irrelevant and overly prejudicial evidence of discreditable acts; and  ground 5 (added by leave) – unnecessarily preferring the respondent’s photographic evidence of the exit condition of the premises taken on 25 July 2016 to more accurate pictures taken by the applicants on 23 July 2016. [15] The applicants seek to have the tribunal’s decision set aside and a new hearing by a different member. They also seek a pecuniary penalty against the respondent for submitting false and misleading information. [16] If leave is granted to appeal on mixed questions of law and fact, the appeal is by way of rehearing and the appeal tribunal has the power to confirm or amend the decision or set the decision aside and substitute its own.7 Ground 1 [17] The applicants claim the tax invoice provided by ‘See how it Sparkles’ (the cleaner engaged by the property agent) does not meet the requirements of s 101 of the Australian Consumer Law. Consumers may request an itemised bill of services supplied in trade or commerce specifying how the price of services was calculated, hours of labour and, if applicable, a list of materials used.8 [18] The applicants say that despite numerous email requests within the statutory time limit9 the 2 August 2016 bill was not itemised and did not include the cost of cleaning materials. [19] The applicants were sent an invoice (within 7 days) that listed the cleaning performed as “whole kitchen, both bathrooms and toilet, all window tracks, frames and glass, doors, door frames and cupboards in bedrooms including linen, most lights, all switches and plugs, wall including scuff marks, deck including bar and stools”. The method of calculation is obvious from the invoice being 10 hours of labour at $35 per hour plus GST. [20] The applicants have not explained to the appeal tribunal why the ACL applies, whether their request was made in time or why a contravention of the ACL would have the effect of invalidating the tribunal order. [21] In any event, the cleaning services provided are clear and detailed enough from the invoice. 7 QCAT Act s 147(1)-(3). 8 ACL s 101(1)(a)-(c). 9 The request must be made within 30 days of supply or receiving a bill (whichever is later) – the supplier has 7 days to respond: ACL s 101(2)-(3). -- 4 of 7 -- 5 Ground 2 [22] The applicants requested on 15 September 2016 that a tribunal hearing listed for 16 September 2016 be adjourned. They claimed that they required 30-60 days to prepare their substantive case in light of their disabilities and distance (280kms) from where their documents are stored. [23] The registry informed them on 16 September 2016 that the matter had been adjourned due to “unforeseen circumstances” and was relisted for hearing on 30 September 2016. The applicants assumed that the 30 September 2016 date was for making further submissions in support of their request for adjournment and miscellaneous application to attend by phone and not a hearing of the dispute itself. [24] A file note from the Proserpine registry of an administration officer’s conversation with the applicants on 26 September 2016 corroborates their version and expectations about the 30 September 2016 hearing. However, the file note also says the applicants were informed that they were expected to be prepared for the hearing. [25] The applicants were clearly confused about the purpose of the 30 September 2016 hearing and were arguably misled by the registry into preparing for an adjournment hearing when they should have been preparing for trial. [26] That said, the applicants did not raise any concerns at the hearing and probably should have been prepared to argue their substantive case on 30 September 2016 if a further adjournment was denied. [27] Furthermore, the applicants had filed submissions, including photographic evidence, which the tribunal considered,10 so it would appear that any forensic disadvantage suffered was minimal.11 [28] There is no reason to suppose that any more preparation time would have altered the result. Ground 3 [29] The applicants claim the tribunal unfairly dismissed their counter-claim for being “retaliatory” and did not give them the opportunity to fully argue their case. [30] They contend that the delay in raising their concerns about alleged breaches of the tenancy agreement was due to the death of a family member. [31] The applicants also claim to have lodged a Dispute Resolution Request on 19 April 2016 about the rectification of maintenance issues before any 10 T1-3:30-35. 11 Although the tribunal did criticise them at T1-2:35-40 for making submissions “willy-nilly” on the morning of the hearing. -- 5 of 7 -- 6 dispute about the bond arose but administration errors made by the RTA meant the request was only received on or about 11 August 2016. The applicants claim they were advised they would need to commence legal proceedings and thought it would be efficient to deal with it at the same time as the bond dispute hearing. The tribunal did not accept the applicants’ explanation for the delay as being satisfactory and found that some of the issues complained of were resolved well before the counter-claim was raised.12 [32] It is unfortunate if mistakes that may have been made by the RTA led the tribunal to perhaps unfairly criticise the applicants’ preparation and conduct. [33] That said, apart from any lost “set off”, the applicants have not identified how the dismissal of their counter-claim has any effect on their legal liability to pay the cleaning invoice. Ground 4 [34] The applicants allege that the respondent made false claims in their minor civil dispute application that the applicants burnt palm fronds on site in an effort to discredit them before the tribunal. [35] The applicants may feel that their reputation has been wrongly and unfairly impugned, however, the tribunal was very clear that the question of whether the palm fronds were burnt or not did not affect the claim for the cleaning invoice. There was no indication that the tribunal was prejudiced against the applicants, engaged in impermissible reasoning or that its decision was not according to the substantial merits of the case.13 Ground 5 [36] Finally, the applicant’s claim that the tribunal erred in preferring the respondent’s photographs as the more accurate depiction of the state of the premises when they left. [37] They allege that any marks or outstanding cleaning must have occurred between the 24 July 2016 (when they exited) and 26 July 2016 (when the property agent’s photos were taken). They also claim that the time stamp on the respondent’s photos does not match the date they say the final inspection was carried out (25 July 2016 vs 26 July 2016). The applicants have clearly gone to a lot of trouble to adduce evidence in support of their contentions. [38] However, an error in need of correction is only made where the tribunal’s fact finding was so irrational that no reasonable person could have come to the same conclusion.14 That is a high bar to reach. 12 T1-13:5. 13 QCAT Act s 28(2). 14 Fox v Percy (2003) 214 CLR 118, 125-126. -- 6 of 7 -- 7 [39] The applicants’ arguments on this point have not addressed the tribunal’s key finding that photographs submitted by the applicant were not of the same areas as the property agent’s or that were specifically addressed in ‘See how it Sparkles’ invoice.15 [40] It was open and reasonable for the tribunal to accept the respondent’s photographs, in conjunction with the invoice for cleaning, as establishing that the premises required extra cleaning. It was also reasonable for the tribunal to reject the rather unlikely proposition that any marks occurred in the two days between exiting and final inspection. [41] The appeal tribunal is sympathetic to the applicants’ personal circumstances and ongoing health issues. Unfortunately for the losing side, success on appeal requires more than just a sense of injustice or unfairness, and it is possible, and is often the case, for two sides to draw opposing conclusions from the same facts. [42] The applicant has not demonstrated any appellable error in the tribunal’s decision and leave to appeal should be refused. 15 T1-7:40; T1-9:40. -- 7 of 7 --