Dornan v Bethel [2018] QCATA 22

CITATION: Dornan v Bethel [2018] QCATA 22 PARTIES: Matthew Dornan (Appellant) v Hayden Bethel (Respondent) APPLICATION NUMBER: APL168-17 MATTER TYPE: Appeals HEARING DATE: 30 January 2018 HEARD AT: Brisbane DECISION OF: Member Howe DELIVERED ON: 15 February 2018 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal refused. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where change of tenants and new tenancy agreements – where claim by continuing tenant to previous co- tenant’s bond – where no claim by lessor for payment of monies out of the bond – where previous tenant continued as permitted occupier of premises under new tenancy agreement Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 111(1), s 122, s 419 Pickering v McArthur [2005] QCA 294 APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION Mr Dornan and Mr Bethel were co-tenants of a residential property at Maroochydore. They were both tenants under a residential tenancy agreement which started on 8 August 2015 and ended on 7 February 2016. -- 1 of 6 -- 2 Pursuant to that tenancy agreement they each paid $1,000 towards a bond which was held by the Residential Tenancy Authority (RTA). Towards the end of that tenancy Mr Bethel decided to move out. He found it difficult to find another place however and remained living at the property through to the beginning of 2017. At the end of the first tenancy agreement Mr Dornan signed a new tenancy agreement with the lessor. The commencement date of the new fixed term tenancy was 8 February 2016 and its end date 7 August 2016. The parties did nothing about the $2,000 bond paid under the first tenancy agreement when Mr Bethel first decided to leave, but did not, and Mr Doran signed a new tenancy agreement. After Mr Bethel finally left in early 2017 the parties fell into dispute over the bond. Mr Dornan applied to the Tribunal. His claim is unclear but appears to be a claim to Mr Bethel’s share of the bond to be used for cleaning. In the application he seeks $999 and says he wants the Tribunal “to hold enough bond to do the required repairs, rubbish removal, mould, ants and exit clean.” The matter was first heard by the tribunal on 24 March 2017 but the tribunal adjourned the matter to ensure the real estate agent was available to give evidence. The matter was relisted for 3 May 2017 when the tribunal heard from the agent, Mr Dornan and Mr Bethel. The tribunal ordered Mr Bethel’s share of the bond of $1,000 held by the RTA be paid out to him. Mr Dornan has appealed that decision. He has not sought leave to appeal before appealing but he must, given this is an appeal from the tribunal sitting in its Minor Civil Dispute jurisdiction.1 Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and there is a reasonable argument that there is an error to be corrected.2 Mr Dornan’s grounds of appeal are broad and somewhat vague but unfortunately that is not uncommon in minor civil dispute matters where parties are required to represent themselves. But regardless of acknowledgement of the difficulty of lay people understanding legal principle and process, an application for leave to appeal or appeal is not an opportunity to have a second attempt at hearing hoping for a better outcome second time round. An application for leave to appeal or appeal at minimum 1 QCAT Act, s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294, [3]. -- 2 of 6 -- 3 requires the appellant to identify with some precision a substantial injustice to the appellant or an error made by the tribunal at first instance or some other aspect of the hearing below which went wrong. Further an application for leave to appeal or appeal is not an opportunity to lead fresh evidence without leave of the appeal tribunal first obtained. Both parties here have submitted evidence about the circumstances of the tenancies and the behaviour of the other, which evidence was not presented at the hearing below. There is no application before the tribunal to allow fresh evidence and accordingly the application for leave to appeal and appeal is appropriately determined only on the material that was before the tribunal at first instance. The following grounds of appeal may be discerned in Mr Dornan’s appeal, which must initially be treated as an application for leave to appeal: a) Ground 1: The tribunal erred in releasing the respondent’s share of the bond without deduction for cleaning or repairing damages. b) Ground 2: The tribunal erred in failing to give Mr Dornan a chance to state his case. Ground 1 The tribunal had before it very limited information. There were copies of two residential tenancy agreements, the first showing both Mr Dornan and Mr Bethel as tenants and the second showing only Mr Dornan as the tenant. In the special terms to the latter agreement there is handwriting stating “Approved tenent (sic) Hayden Bethel” but in formal type below that there is the notation “Names of approved occupants: Matthew Dornan and Hayden Bethel”. Only Mr Dornan has signed the second tenancy agreement. The date of signature is 20 January 2016. The second tenancy agreement started on 8 February 2016 and had an end date of 7 August 2016. The agent understood that Mr Dornan was sole tenant under the new lease. It was not made clear at hearing whether Mr Bethel paid rent from the time of the end of the first tenancy agreement, though the tribunal enquired about that of the agent.3 The agent did not know. The tribunal asked Mr Dornan whether Mr Bethel was paying rent to Mr Dornan as a sub-tenant and Mr Dornan said “No, not really. He was paying as – he was always going to move out … at the original date to move back into his folks (sic) and that didn’t happen, so it just carried on the way it was.”4 3 Transcript 1-5 Line 38-46. 4 T1-6 L13-19. -- 3 of 6 -- 4 Then Mr Dornan said “He had been removed from the lease but as an approved tenant. The reason the bond never fixed up because he never moved out. Had he moved out, we would have fixed up the bond.”5 It seems fairly clear that the former co-tenants continued on in their living arrangements after execution of the second tenancy agreement much the same way as they had when the first tenancy agreement was on foot and they were both tenants. It is not clear exactly when Mr Bethel left the house. It was apparently in early 2017. There was an issue raised about other people living at the property. Mr Dornan said there was when asked but he did not say when first started living there, how many there were and what rent they were paying. There was no exit condition report completed by either Messrs Dornan or Bethel at the end of the first tenancy agreement nor by Mr Dornan after the end of his fixed term second tenancy. As at date of hearing Mr Dornan remained a tenant at the property. The tribunal stated at that point of the proceedings that the problem for Mr Dornan was that there was no exit condition report completed when Mr Bethel left and Mr Dornan was the only person “named in the lease”. That latter statement was obviously intended to mean that Mr Dornan was the only tenant named in the lease. Though brief, the basis upon which the tribunal concluded Mr Bethel’s share of the bond should be returned to him is summed up by the statement of the tribunal that there was no exit condition report completed at the time when Mr Bethel left and Mr Dornan was the sole tenant under the tenancy agreement. The tribunal went on to say that even if there was an exit condition report completed at the time Mr Bethel left the property, the same outcome would apply because Mr Dornan was the sole tenant at the premises for over one year. I think the tribunal was correct in reaching that conclusion. By s 122 of the Residential Tenancies and Rooming Accommodation Act 2008 (RTRAA) if the RTA holds a rental bond for a residential tenancy agreement and the agreement ends and the tenant continues occupying the premises under another agreement (the new agreement) with the lessor and the RTA does not receive an application for payment of the rental bond, the rental bond is taken to be a rental bond for the new agreement. 5 T1-6 L23-28. -- 4 of 6 -- 5 This covers the situation where tenants enter into a 6 or 12-month lease and then renew on substantially the same terms at the end of the fixed term. As long as the tenants remain the same, the bond is held over as a bond for the next fixed (or periodic if no new tenancy agreement is completed) term. But where the identity of the tenant or tenants change, s 122 has no application. Here the bond paid by the two tenants does not become a bond available as a bond under the second tenancy because the identity of the tenants changed. A rental bond is an amount paid by a tenant under a tenancy agreement intended to be available for the financial protection of the lessor against the tenant breaching the tenancy agreement.6 There is no claim to the bond by the lessor here. Further, that claim would have had to be made under the first tenancy agreement and made within 6 months of any breach of the tenancy associated with that bond.7 Mr Dornan’s claim has not arisen out of any claim from the lessor for cleaning costs either at the time of the end of the first tenancy agreement or approximately one year later when Mr Bethel left. The only suggestion about cleaning work will be necessary and there is a cost associated with it appears to be a quotation dated 23 February 2017 addressed to “Matthew D” from a cleaning company. It has very little detail. It is not clear that that cleaning work has actually been performed. Mr Dornan’s claim is effectively to have Mr Bethel’s share of the bond from the first tenancy agreement transferred to him or held to his benefit as part of Mr Dornan’s bond under the second agreement. But unless that is agreed to by Mr Bethel, Mr Dornan has no entitlement to make that claim against the bond. This ground of appeal has very limited prospects of success. Ground 2 The second ground of appeal likewise has very limited prospects of success. A perusal of the transcript shows, contrary to the complaint made, that Mr Dornan was given an opportunity to explain his application and position and indeed it was Mr Bethel that was told towards the end of the hearing “Mr Bethel, I’m sorry, we haven’t asked you to say anything. Would you like to say anything?”8 6 RTRAA, s 111(1). 7 Ibid, s 419. 8 T1-9 L35. -- 5 of 6 -- 6 Prior to that query the discussion had been between the tribunal and the agent and the tribunal and Mr Dornan, principally the latter. Following the invitation to Mr Bethel he said little and Mr Dornan again had an opportunity to speak about his claim. The Minor Civil dispute jurisdiction is a very busy one. Parties are expected to present their own cases and generally to lead all relevant material on the day of hearing. Though this matter did not take a long time, I am satisfied Mr Dornan was given a reasonable time and opportunity to present his case. The appellant has suffered no substantial injustice in the decision below and there is no reasonable argument that there has been an error made which should be corrected. Leave to appeal must be refused. -- 6 of 6 --