Finegan v Mann [2018] QCATA 32

CITATION: Finegan v Mann [2018] QCATA 32 PARTIES: Gary Finegan (Appellant) v Julianna Mann (Respondent) APPLICATION NUMBER: APL124-17 MATTER TYPE: Appeals HEARING DATE: 3 October 2017 HEARD AT: Brisbane DECISION OF: Member Howe DELIVERED ON: 8 March 2018 DELIVERED AT: Brisbane ORDERS MADE: Leave to Appeal refused CATCHWORDS: APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN NO APPEAL LIES – evidence – incorrect citing of statutory provisions in application – technical objection LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – OBLIGATIONS, PROHIBITED MATTERS AND PROTECTION FOR TENANTS – RENTAL BONDS OR SECURITY DEPOSITS – where resident seeking bond – denial of receipt by provider Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 4(c) Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 116, s 188, s 430 Hockley V Sowden [2000] QCA 9 Pickering v McArthur [2005] QCA 294 Sand & Surf Design Pty Ltd v Surrey & Anor [2014] QCATA 225 -- 1 of 5 -- 2 APPEARANCES: APPLICANT: Self-represented RESPONDENT: Paty Soto represented the respondent REASONS FOR DECISION [1] Julianna Mann took up accommodation at premises in Sunnybank owned by the appellant on 14 September 2014. She signed a standard form residential tenancies agreement dated 22 February 2016. That residential tenancies agreement also nominated two other tenants who also signed the document. Mr Finegan was named as lessor in the agreement. There was a bond of $1,640 stipulated to be paid under the tenancy agreement. [2] Though the document signed was a residential tenancies agreement, in proceedings before the learned Adjudicator below Ms Mann submitted that the arrangement was in fact a rooming accommodation agreement rather than a residential tenancy one. She said everybody there were rooming accommodation residents rather than co-tenants. There were house rules. Ms Mann said she had answered an advertisement advertising one room for rent. Ms Mann said all the so-called tenants there had paid bonds but some had no evidence of that, including Ms Mann. [3] Ms Mann says Mr Finegan was away when she initially took up residence. She paid a bond of $560 to a person named Pedro who appeared to be acting on behalf of the lessor as a handyman. She says she asked for a receipt but he said he would get back to her about that. She says she never got a receipt, either from Pedro or Mr Finegan. [4] When she decided to leave she asked for her bond back. Ms Mann said in her application to the Tribunal below that Mr Finegan claimed the money as his. Mr Finegan said at hearing he refused because she had never given a bond. There was no bond paid into the Residential Tenancies Authority (RTA) fund as required by the legislation. [5] Ms Mann says she paid Mr Finegan, or Pedro, two weeks rent of $280 and a bond of $560. [6] Ms Mann brought proceedings in the Tribunal seeking return of her bond. The matter came before a learned Adjudicator who ordered Mr Finegan to pay Ms Mann the bond amount of $560 and also ordered the matter be referred to the Residential Tenancies Authority. Leave to Appeal [7] Mr Finegan appeals that decision. Given this is an appeal from a minor civil dispute decision of the Tribunal, leave to appeal must first be sought. Leave to appeal will usually only be granted where an appeal is necessary -- 2 of 5 -- 3 to correct a substantial injustice to the applicant, and there is a reasonable argument that there is an error to be corrected.1 [8] Mr Finegan’s grounds of complaint with the decision of the learned Adjudicator appear to be twofold. First that Ms Mann had incorrectly nominated s 430, s 188 and s 116 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA) in her application to the Tribunal, and secondly that she had presented no evidence at the hearing to support her claims about having paid a bond. The Wrong Sections [9] Page 3 of the application makes provision for an applicant to nominate what orders are being sought. There is also space to nominate a provision in the RTRA though it is not clearly stated why the latter is required. There is space to insert “Section of Act” and that is followed by a space to say “What order do you want the Tribunal to make?” Ms Mann noted the section of the RTRA as s 430 and for the order she was seeking she added in capitals “I seek an order from the Tribunal for the return of my bond from the respondent. Any other order the Tribunal deems appropriate.” [10] Mr Finegan’s complaint is that though he was not misled about what Ms Mann wanted at the hearing before the learned Adjudicator, she nominated the wrong section in stating s 430. Further, on the next page she said there had been a breach of s 188 and s 116 and those sections were wrong too. [11] Mr Finegan’s complaint is, as he said at appeal, a formal one meaning a technical objection. [12] Section 430 concerns disputes between co-tenants and co-residents about rental bonds. It provides for any co-resident to make application to the Tribunal about a rental bond. It requires a lessor or provider of rooming accommodation to be given an opportunity to be heard. [13] Section 188 covers a tenant’s obligation under a residential tenancy to deliver up premises in the same condition as at start of the tenancy, save for fair wear and tear. [14] Section 116 refers to the statutory obligation of a person receiving a rental bond to pay it to the RTA within 10 days of receiving it. [15] All of these provisions generally relate to the end of a tenancy or rooming accommodation and the bond. A lessor or rooming accommodation provider may have a claim against a tenant or resident’s bond because the premises were not left in appropriate condition at exit. Any bond paid by a tenant or resident is to be held by the independent RTA for 1 Pickering v McArthur [2005] QCA 294, [3]. -- 3 of 5 -- 4 distribution at the end of a tenancy or rooming accommodation agreement. [16] There are no pleadings in the Tribunal. “As there are no pleadings in the Tribunal, it can sometimes be difficult to identify the issues required for determination. As such, there is an enhanced importance for Tribunal members to themselves identify the issues from the application, response, the statements of evidence and the parties’ submissions during the course of the hearing.”2 [17] Mr Finegan admits he understood the issue for determination at hearing, namely Ms Mann’s claim for return of a rental bond. By s 4(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), the Tribunal must ensure proceedings are conducted in an informal way that minimises costs to parties, and is as quick as is consistent with achieving justice. That provision ensures the Tribunal deals with matters in a way that is accessible, fair, just, economical, informal and quick.3 [18] The application filed by Ms Mann was clear in what she sought and what was alleged. Ms Mann said she had paid a bond when she entered the premises and she wanted it back when she left. [19] Mr Finegan seems to place great reliance on the difference between a co- tenancy agreement and a rooming accommodation agreement, though precisely why that was relevant in the matter before the learned Adjudicator was not made clear. Whether it was rooming accommodation or a tenancy was irrelevant to the claim by Ms Mann, because both circumstances of occupation allowed for a bond and, on vacation, return of the bond subject to any claim against it by Mr Finegan as lessor or rooming accommodation provider. Ms Mann was applying for its return. [20] This emphasis by Mr Finegan on a tenancy rather than rooming accommodation based on the type of document completed between the parties appears to be what the learned Adjudicator was referring to in his short reasons for decision when he said parties cannot contract out of the RTRA. [21] But regardless how the occupation rights of Ms Mann were described in the residential tenancy agreement, the issue before the learned Adjudicator was about payment of a bond and Mr Finegan knew that, regardless that the wrong sections of the RTRA were referred to in the application document. Insufficient Evidence [22] Mr Finegan’s other complaint is that the learned Adjudicator had no independent evidence other than the claim from Ms Mann that she paid a 2 Sand & Surf Design Pty Ltd v Surrey & Anor [2014] QCATA 225, [39]. 3 QCAT, s 3(b). -- 4 of 5 -- 5 bond and he simply took her word about paying a bond. He suggested she should have obtained statutory documents from witnesses or be required to present other material. [23] Mr Finegan’s complaint must be that there was no evidence upon which the learned Adjudicator could conclude that a bond had been paid by Ms Mann. [24] It was a matter for the learned Adjudicator whether he accepted Ms Mann’s evidence. He was entitled to accept or reject the evidence. That her evidence was apparently not given under oath does not preclude it from being evidence upon which the Tribunal might rely. By s 28(3)(c) of the QCAT Act, the Tribunal may inform itself in any way it considers appropriate. That extends to accepting unsworn statements either in writing or given orally. [25] I cannot accept however that it was simply an unsworn statement by Ms Mann that was the available evidence for consideration and decision. The learned Adjudicator also had before him a copy of the residential tenancy agreement signed by both Ms Mann and Mr Finegan, which clearly provided for a bond of $1,640 to be paid by the three people named in the document howsoever they were described. One of them was Ms Mann. [26] Then there were the filed copies of text messages between Ms Mann and Mr Finegan. There appears to have been a fairly active exchange via text between both parties up to the time when Ms Mann asked Mr Finegan about her bond. From that point on the texts from Mr Finegan ceased despite ongoing texts from Mrs Mann about her bond. Nor was there any response from Mr Finegan denying she had paid him any bond after receiving the text messages asking for its return. One might have anticipated a denial would have been forthcoming but there was no evidence of such in the material presented to the learned Adjudicator. [27] There was evidence upon which the learned Adjudicator could determine that a bond had been paid and the amount of the bond, which he did. [28] “These are essentially discretionary areas …. Such issues are ones upon which different minds may understandably form different impressions. Such an area is not a favourable one for a grant of leave to appeal.4 Conclusion [29] As explained, leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to an appellant and where there is a reasonable argument that there is an error to be corrected. [30] Neither circumstance arises here and leave to appeal is refused. 4 Hockley v Sowden [2000] QCA 9 per Thomas JA. -- 5 of 5 --