Anderson v Romano Property Management [2018] QCATA 40

CITATION: Anderson v Romano Property Management [2018] QCATA 40 PARTIES: BELINDA ANDERSON (Applicant) V ROMANO PROPERTY MANAGEMENT (Respondent) APPLICATION NUMBER: APL321-17 MATTER TYPE: Applications and Appeals HEARING DATE: 20 February 2018 HEARD AT: Brisbane DECISION OF: Justice Carmody DELIVERED ON: 20 February 2018 DELIVERED AT: Brisbane ORDERS MADE: THE APPEAL TRIBUNAL ORDERS THAT: 1. Leave to appeal is refused. CATCHWORDS: APPEAL – MINOR CIVIL DISPUTE – TENANACY – where the tribunal ordered the applicant pay the landlord compensation for a damaged wooden deck and garage roller door – where the applicant claims the tribunal came to an irrational inference about the cause of the damage to the roller door – where the applicant claims the landlord failed to mitigate loss with respect to the deck restoration – whether the tribunal adequately considered the betterment principle – where the appeal tribunal does not ordinarily interfere with findings of fact – where the order was fair and equitable – where leave is refused Queensland Civil and Administrative Tribunal Act 2009 ss 13(1), 83(1) Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 362, 413(1) -- 1 of 4 -- 2 APPEARANCES and REPRESENTATION (if any): APPLICANTS/APPELLANTS Belinda Anderson RESPONDENT Joanne Romano and Kristy Watts REASONS FOR DECISION [1] The matter was set down for a directions hearing but the parties both consented to proceeding with hearing the substantive leave application. [2] The matter is a minor civil dispute arising out of a tenant’s alleged breach of a residential tenancy agreement. The claim by the property agents on behalf of the landlord was for compensation of $3502, comprising of a garage door costing $2630 to repair and the restoration of a deck at $1650, less the bond release of $778. [3] Liability was not in issue for the last item, but was denied for the first. The applicant was held liable for the damage to the garage door based on disputed admissions and the unlikelihood that anyone else could have been responsible for it in the short interval between the exit-date and when the photographs of the damage were taken by the property agent. [4] That left the reasonableness of the amount of the claim as the only issue that could be decided at the hearing. [5] In resolving minor civil disputes over breaches by a tenant the tribunal has jurisdiction to make fair and equitable orders.1 [6] The question on appeal, therefore, is whether the challenged order meets that description. [7] The tribunal discounted the cost of repairing the roller door by 10 per cent or $263 to $2367 for betterment and allowed $825 or 50 per cent of $1650 less the bond release of $778 or $97 for the deck. That meant that the applicant was ordered to pay a total of $2464 for the claim and $116.40 for the filing. [8] She applies for leave to appeal on the basis that, one, there was a mediated result on 12 June 2017 which was not taken into account by the tribunal. However, as was explained during the hearing, the evidence of comprises or alleged settlements at conciliation hearings conducted by the Residential Tenancies Authority are inadmissible at a tribunal hearing.2 [9] The next proposed ground of appeal is that there was procedural unfairness in the form of an inadequate hearing and the quantum of the property agent’s claim was inconsistent. The claim was out at various points between the beginning and the end of the hearing by $150. The 1 QCAT Act s 13(1). 2 QCAT Act s 83(1); Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 413(1). -- 2 of 4 -- 3 discrepancy was identified by the tribunal as the GST component on the deck rectification and corrected before the order was made. [10] The next proposed ground of appeal relates to the garage door. It is, in legal terms, irrationality, or that there was inadequate proof of liability. [11] The question, then, is whether it was open to the tribunal to find that the person most likely responsible for the damage to the garage door, despite her denials and evidence from her father supporting her version of events, was the applicant. [12] It was open to the tribunal to find that the applicant had admitted driving into the garage door and causing the damage and it was also open for it to infer that it was unlikely to have been caused by anybody else between when she left the premises and when the photographs of the damage were taken a couple of days later. [13] The appeal tribunal does not disturb findings of fact open to the tribunal even if it disagrees with them or would have reached another conclusion.3 If it comes to a question of opinion versus opinion, the tribunal opinion wins. The only time that the appeal tribunal will overturn a finding of fact is if the finding of fact was based on no evidence or if it was an inference irrationally drawn from the available evidence. The tribunal can make a finding open to it even if it is contestable within the range of the possibilities in accepting the admission and inferring liability from the circumstances. [14] The fourth proposed ground of appeal relates to both claims. The applicant suggests that they were made in reprisal for her refusal to sign a blank bond release form. That is not a legitimate ground of appeal. It does not address the issue that the tribunal was asked to decide at the hearing and, in any event, it is a question of fact that is immaterial to the result. [15] The fifth challenge to the decision of the tribunal is that the landlord or the property agent failed to mitigate a breach contrary to section 362 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) because the repair work still has not been done and the lowest quote was not used. [16] However, there is no legal rule requiring a landlord to expend a compensation award on actual rectification. The compensation is for the damage measured at the time it occurred and, therefore, whether it is fixed or not afterwards is irrelevant. [17] As to the quote, the tribunal chose the lower of two quotes for the roller door and the only question was whether that amount was in the circumstances reasonable. There was no evidence suggesting that it was unreasonable even though the cheapness of the quote is not necessarily 3 House v The King (1936) 55 CLR 499. -- 3 of 4 -- 4 the only measure of damage. The question is whether the quote was for work that was reasonably necessary for a reasonable price to be done to compensate the landlord. [18] There is no entitlement to compensation for unmitigated – that is reasonably avoidable expenses, however. An owner must act reasonably to reduce the cost of the losses caused by a tenant. This may include early preventative expenditures to avoid greater losses later, but it does not require accepting the lesser alternative between lost value and restoration. Tenants are legally obliged to restore, not renew premises. They do not have to enhance the value of damaged fixtures or fittings. However, assessing compensation for tenant breaches when exact reinstatement of an inclusion which does not reduce the saleability or profitability of the premises itself is not possible and the only option is replacement, it is notoriously difficult. [19] Without being too technical about it, the tribunal has to find a way of making orders that neither over nor under-compensate landlords for their real loss. There is no basis on which it is open to the appeal tribunal to find that the tribunal applied the wrong legal test or the right one to the wrong facts. [20] In those circumstances there is no error demonstrated by the applicant and leave to appeal should be refused. -- 4 of 4 --