Cook v Southern Cross Consultancy Pty Ltd t/as Beechmont Mountain Sales [2018] QCATA 20

CITATION: Cook & Anor v Southern Cross Consultancy Pty Ltd t/as Beechmont Mountain Sales [2018] QCATA 20 PARTIES: Warren Cook and Angelika Lantos (Appellants) v Southern Cross Consultancy Pty Ltd t/as Beechmont Mountain Sales (Respondent) APPLICATION NUMBER: APL174-17 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Hughes DELIVERED ON: 6 February 2018 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – EVIDENCE NOT AVAILABLE AT HEARING – WHEN NOT ADMISSIBLE – where appellant did not explain why material not submitted at original hearing – where material would not have important impact on result because not relevant to finding that Notice was retaliatory INTERFERENCE WITH ADJUDICATOR’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE TRIBUNAL – PROOF AND EVIDENCE – where evidence capable of supporting Tribunal’s conclusions INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – CONTROL OVER PROCEEDINGS – where Tribunal has mandate to deal with matters quickly – where appellant was given opportunity -- 1 of 12 -- 2 to present case – where appellant’s failure to apply for adjournment is not denial of natural justice – where appellant had obligation to act in own best interests LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – RECOVERY OF POSSESSION – GENERALLY – where Notice to Leave Without Grounds – whether retaliatory – where section not to be construed too broadly Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 28, s 143 Aon Risk Services Australia Ltd v Australian National University (20090 239 CLR 175 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Bamfield v Zanfan Pty Ltd t/as Main Street Realty Caloundra [2010] QCATA 1 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39 Briginshaw v Briginshaw (1938) 60 CLR 336 Cachia v Grech [2009] NSWCA 232 Chambers v Jobling (1986) 7 NSWLR 1 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v ACCC (2007) 162 FCR 466 Creek v Raine & Horne Mossman [2011] QCATA 226 Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Kioa v West (1985) 159 CLR 550 Lindenburg v Kalwan Development Corporation Ltd [2011] QCAT 287 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611 Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152 QUYPD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe [2013] QCATA 212 -- 2 of 12 -- 3 Repatriation Commission v Smith (1987) 74 ALR 537 Selvanayagam v University of the West Indies [1983] 1 All ER 824 Slater v Wilkes [2012] QCATA 12 Waterford v The Commonwealth (1987) 163 CLR 54 Williams v Ray White Cairns Beaches [2016] QCATA 16 APPEARANCES: This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). REASONS FOR DECISION What is this appeal about? [1] Warren Cook and Angelika Lantos rented a property from Andrew James, through his agent Southern Cross Consultancy Pty Ltd t/as Beechmont Mountain Sales. Mr Cook and Ms Lantos applied to the Tribunal for orders requiring Mr James to perform maintenance and set aside a ‘Notice to Leave without Grounds’. [2] An Adjudicator ordered Mr James to perform maintenance but refused to set aside the Notice. Mr Cook and Ms Lantos want to appeal that decision. [3] Because this is an appeal from a minor civil dispute, leave is required.1 [4] In determining whether to grant leave, the Tribunal will consider established principles including whether there is a reasonably arguable case of error in the primary decision,2 whether there is a reasonable prospect that the appellant will obtain substantive relief,3 whether leave is needed to correct a substantial injustice caused by some error,4 and whether there is a question of general importance upon which further argument, and a decision of the Appeals Tribunal, would be to the public advantage.5 [5] Mr Cook and Ms Lantos filed 89 paragraphs setting out their grounds of appeal, but these can be adumbrated as: 1 QCAT Act, s 143(3). 2 QUYPD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 3 Cachia v Grech [2009] NSWCA 232, 2. 4 QUYPD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 5 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580. -- 3 of 12 -- 4 a) The evidence was not capable of supporting the learned Adjudicator’s findings; b) The learned Adjudicator did not correctly apply the relevant provisions; and c) They were not afforded natural justice. [6] Before I address these grounds of appeal below, I will first address references by Mr Cook and Ms Lantos to evidence not before the learned Adjudicator. Should the Appeal Tribunal admit fresh evidence? [7] In their grounds of appeal, Mr Cook and Ms Lantos referred to various new items of evidence not before the learned Adjudicator: a) An online development application search that they say contradicts the agent’s claim of the lessor wanting vacant possession to undertake works; b) Gold Coast City Council orders about hand rail compliance; c) The Council investigating the kitchen installation; d) The Electrical Safety Office investigating unlicensed electrical works; e) The Queensland Building and Construction Commission not proceeding with an investigation of the landlord’s claim of unlicensed building works; and f) The Council contacting the landlord and agent about minor repairs. [8] The Appeal Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce fresh evidence must satisfy three tests. Could the parties have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?6 [9] An application for leave to appeal is not, and should not be an attempt to reargue a party’s case at the initial hearing.7 Mr Cook and Ms Lantos did not explain why they did not provide this evidence at the original hearing. Moreover, for reasons which will become more apparent below, none of this evidence would have an important impact on the result of the case. [10] This is because - as will become apparent from the reasons below - this evidence is not relevant to the Adjudicator’s finding that the Notice was 6 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408. 7 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39. -- 4 of 12 -- 5 not retaliatory. At most, this evidence relates to the condition of the premises and the landlord’s alleged failure to maintain the premises. [11] The learned Adjudicator accepted there was a failure to maintain and made appropriate Orders. However, the learned Adjudicator did not accept that the alleged failure to maintain or the tenant’s reporting of maintenance issues was the reason for the Notice. [12] The new evidence does nothing to prove the lessor’s state of mind when instructing the agent to issue the Notice. The new evidence is not admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Adjudicator. Was the evidence capable of supporting the Adjudicator’s findings? [13] Mr Cook and Ms Lantos devoted much of their appeal towards the learned Adjudicator’s findings of fact and whether they were capable of being made according to the relevant standard of proof, namely the balance of probabilities.8 [14] Findings of fact will usually not be disturbed on appeal if the facts inferred by the Tribunal, upon which the findings are based, are capable of supporting the conclusions and there is evidence capable of supporting the underlying conclusions.9 No error of law arises in making a wrong finding of fact unless no evidence supports that finding.10 [15] Mr Cook and Ms Lantos made manifold submissions about the agent not having direct knowledge of the issues, whether the agent could or should have provided better evidence, the weight attached to the evidence by the learned Adjudicator and the learned Adjudicator’s inferences drawn from the evidence. [16] However, an appellate Tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case,11 but will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.12 Attempting to explain away each finding with a possible alternative does not demonstrate error by the learned Adjudicator. Where reasonable minds may differ, a decision cannot properly be called erroneous, simply because the learned Adjudicator prefers one conclusion to another possible conclusion.13 8 Briginshaw v Briginshaw (1938) 60 CLR 336; Repatriation Commission v Smith (1987) 74 ALR 537, 546; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v ACCC (2007) 162 FCR 466. 9 Fox v Percy (2003) 214 CLR 118, 125-6. 10 Waterford v The Commonwealth (1987) 163 CLR 54, 77; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 341. 11 Chambers v Jobling (1986) 7 NSWLR 1, 10. 12 Dearman v Dearman (1908) 7 CLR 549, 561; Fox v Percy (2003) 214 CLR 118, 125-6. 13 Slater v Wilkes [2012] QCATA 12 [6], citing Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611. -- 5 of 12 -- 6 [17] Mr Cook and Ms Lantos say that the landlord issued the Notice in retaliation to them raising issues about maintenance and repairs. They submitted that in making a finding that the Notice was not retaliatory, the learned Adjudicator placed undue weight on the agent’s hearsay evidence, and did not properly consider their evidence about the landlord’s state of mind when instructing the Agent to issue the notice. [18] However, the Tribunal is not bound by the rules of evidence and may inform itself in any way it considers appropriate.14 Of course, the Tribunal must observe the rules of natural justice.15 It is true that Mr Cook did not have an opportunity to cross-examine the landlord, whose evidence was given in affidavit form. However, as the learned Adjudicator noted, the landlord resides in Victoria. Because the Tribunal is not bound by the rules of evidence, it can consider affidavit evidence, particularly in the minor civil disputes jurisdiction where the Tribunal’s mandate to deal with matters fairly, quickly and economically16 is most acute. [19] The inability to cross-examine the landlord is not a denial of natural justice but merely reduces the weight to be attached to the landlord’s evidence. The Appeal Tribunal notes that the learned Adjudicator’s finding was not solely based on the landlord’s affidavit but also on the Agent’s evidence, after extensive questioning by the learned Adjudicator. [20] Kay Hamilton is the licensee and principal of Beechmont. Ms Hamilton gave evidence about conversations her staff had with the landlord to the effect that he never had a problem with the maintenance,17 her own understanding that the landlord wanted the property maintained and that the Notice had nothing to do with maintenance,18 her denial that the landlord decided to terminate the tenancy because of the tenant’s list of demands,19 and her explanation that the timing was coincidental because of the tight timeframe.20 [21] Although not direct evidence from the landlord and – to the extent it relied upon conversations with staff – including hearsay, Ms Hamilton’s evidence is evidence of the landlord’s state of mind and the learned Adjudicator was entitled to rely on it. [22] Ms Hamilton’s evidence was not inconsistent with the landlord’s affidavit that he was undecided about the lease extension as early as 8 March 201721 – before the agent assessed the most recent maintenance issues on 3 April 2017. Moreover, as the learned Adjudicator noted, the landlord 14 QCAT Act, s 28(3)(b). 15 Ibid, s 28(3)(a). 16 Ibid, s 3, s 4. 17 Transcript, page 1-24, lines 3–5. 18 Transcript, page 1-27, lines 20–23. 19 Transcript, page 1-29, lines 5–10. 20 Transcript, page 1-28, lines 14–15; page 1-29, lines 12–33; page 1-30, lines 7–8; page 1-31, lines 24–30. 21 Affidavit of Andrew Arthur James sworn 18 May 2017. -- 6 of 12 -- 7 had previously made at least some attempts to work with the tenants on maintenance issues. [23] It is implicit that the Tribunal preferred the agent’s evidence about the landlord’s state of mind. Having heard the evidence of both Mr Cook and Ms Hamilton and questioned them extensively throughout the hearing, the learned Adjudicator was in the best position to assess credibility. The learned Adjudicator did refer to the evidence to support his ultimate findings22 and which he was entitled to weigh accordingly.23 [24] I find nothing to indicate that the learned Adjudicator acted on a wrong principle, or made mistakes of fact affecting his decision, or was influenced by irrelevant matters. Nothing in the material or the transcript persuades the Appeal Tribunal that the findings were not open to the learned Adjudicator. [25] This ground of appeal is dismissed. Did the Adjudicator correctly apply the relevant provisions? [26] Mr Cook and Ms Lantos submitted that section 291(3) (and in particular the word “constitutes” therein) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) required consideration of other reasons or behaviour of a landlord that might be found to be taking retaliatory action against a tenant.24 They referred to the condition of the premises at the start of the tenancy and the landlord’s alleged general disregard of health and safety laws under section 185(2) of the Act as other reasons for the landlord’s Notice being ‘retaliatory’. [27] Mr Cook and Ms Lantos cited Donovan v Inkster25 where the Appeal Tribunal referred to the Adjudicator at first instance using a lessor refusing to carry out repairs as a hypothetical example of retaliatory action. However, the use of a hypothetical example by a court or Tribunal of equal standing is not something that binds this Tribunal: It is axiomatic that stare decisis applies only in respect of propositions of law constituting the ratio decidendi of a decision. Conclusions of fact by a superior tribunal or court in the judicial hierarchy does not have the effect of binding an inferior tribunal or court to such a finding, especially in different proceedings. Identifying that a different factual conclusion was reached in a similar case is not sufficient to give rise to appellable error.26 22 Transcript, page 1-38. 23 Selvanayagam v University of the West Indies [1983] 1 All ER 824, 826. 24 Lindenburg v Kalwan Development Corporation Ltd [2011] QCAT 287, [62]. 25 [2015] QCATA 147. 26 Williams v Ray White Cairns Beaches [2016] QCATA 16, [41]. -- 7 of 12 -- 8 [28] As was noted by the then President of the Tribunal, Justice Wilson, in Bamfield v Zanfan Pty Ltd t/as Main Street Realty Caloundra,27 section 291(3) is not to be construed too broadly: Section 291(3) requires careful consideration of the particular circumstances of each case in which it is raised. If ‘retaliatory’ is construed too broadly, almost any complaint by a tenant to an agent or landlord, or even a less than amicable exchange between them, might qualify. It is improbable the legislature intended that the provision would provide the tenant with such an absolute shield. Rather, the section appears to be designed to protect the tenant who has justifiably taken action of the kind set out in s 291(2) (or something similar has occurred, like non-compliance with an unwarranted or unjustified notice to remedy under s 281 and has then been served with a Notice which is apparently responsive to the tenant’s acts but also, in the prevailing circumstances, unreasonable, excessive or vindictive.28 [29] The condition of the premises at the start of the tenancy, the alleged failure to maintain the premises and the tenants reporting of these issues do not of themselves support a conclusion that the Notice was retaliatory. The tenants’ case is essentially that because the Notice followed these issues, the Notice was caused by these issues. However, His Honour’s interpretation of section 291(3) in the above passage reflects the Legislature’s intent to not base findings of retaliation solely on what is known as the logical fallacy of post hoc, ergo propter hoc (“after this, because of this”). [30] The learned Adjudicator correctly cited Bamfield to Mr Cook during the hearing, correctly explaining that section 291(3) required a “pretty strong link” between the tenant’s complaints and the retaliatory matters.29 He then correctly applied this interpretation of the provision, noting that the relevant circumstances included the tenant’s previous complaints presenting no difficulties. The evidence supports that conclusion: the tenant’s previous complaints did not result in any Notice to Leave. [31] Mr Cook and Ms Lantos also submitted that the learned Adjudicator incorrectly found that he was unable to make orders under section 185(1) of the Act, as they were required to accept the premises “as is”. They say that any “as is” standard cannot override the health and safety obligations in section 185(2). 27 [2010] QCATA 1. 28 Bamfield v Zanfan Pty Ltd t/as Main Street Realty Caloundra [2010] QCATA 1, [23]–[24]. 29 Transcript, page 1-19, lines 21–46. -- 8 of 12 -- 9 [32] However, the Transcript shows that the learned Adjudicator did not suggest that taking the premises “as is”, overrode the lessor’s statutory obligations in section 185. Rather, the learned Adjudicator’s comment about taking the premises “as you take it” was within the context of an exchange about minor maintenance issues: ADJUDICATOR: All right. The – this all something to do – well, a lot of it has got to do with the big floods that were happening at the beginning of April, isn’t it? You say they’re all one big thing, the maintenance – failure to comply with maintenance obligations, and the notice to leave is a retaliatory action because you want those maintenance items fixed. MR COOK: Correct. ADJUDICATOR: What are the maintenance items? I know you’ve put in a lot of material here, but it’s a little hard to read in between other matters. MR COOK: It certainly is, and I apologise for the length of document there. Okay. So, in total, with the maintenance matters, it consists of minor maintenance and also matters that are in breach of health and safety orders. ADJUDICATOR: Well, minor maintenance has got nothing to do with it, isn’t it? MR COOK: In essence, to --- ADJUDICATOR: Well, let me turn to – see, it’s not a matter of the Tribunal gets to order a lessor to clean up the place and make it beautiful. You take it as you take it, and the rent you pay is often commensurate with the condition that the lessor leaves it in when he lets the property. MR COOK: I would agree with that. [33] Nothing in the transcript shows that the learned Adjudicator’s orders were based on any misapplication of section 185. Section 185(1) does not contain the obligations about health and safety and maintenance. Section 185(2) relates to the lessor’s obligations for the premises at the start of the tenancy: they must be clean, fit to live in, in good repair and not in breach of a health or safety law. [34] The learned Adjudicator correctly identified that the tenants had applied under section 191 for orders about the landlord’s alleged failure to comply with his maintenance obligations. Section 191 refers to section 185(3). Section 185(3) relates to the lessor’s obligation to maintain the premises during the tenancy. The learned Adjudicator correctly referred to section 185(3) as the basis for the making of his orders under section 191. [35] Nothing in the Transcript shows that the learned Adjudicator did not correctly apply the relevant provisions. [36] This ground of appeal is dismissed. -- 9 of 12 -- 10 Were the appellants afforded procedural fairness during the hearing? [37] Mr Cook and Ms Lantos submitted that the learned Adjudicator did not provide them with an opportunity to present their case in summary at the start of the hearing and instead proceeded to cross-examine Mr Cook. They also submitted that they did not seek to adjourn the matter because the learned Adjudicator mentioned on multiple occasions that he is “running out of time”. [38] The Tribunal must observe the rules of natural justice.30 However, natural justice is a flexible notion that must be commensurate with the nature and demands of the jurisdiction – it is a matter of construction of a particular statutory power.31 The requirements of procedural fairness must be adjusted to the statutory framework governing the Tribunal.32 [39] The Tribunal’s statutory mandate to conduct proceedings in an informal way that minimises costs to parties and is as quick as is consistent with achieving justice33 is at its most acute in the busy and demanding minor civil disputes jurisdiction, where thousands of applications are processed and determined each year.34 Within this context, the Tribunal is not bound by the rules of evidence35 and may inform itself in any way it considers appropriate.36 [40] I have carefully read the transcript. The learned Adjudicator asked relevant questions of both parties and gave them an opportunity to respond, referring to supporting material where appropriate. By doing so, he focused the hearing on the issues to be determined and used time and resources efficiently, consistent with the Tribunal’s mandate. [41] Mr Cook and Ms Lantos filed considerable material to support their case and were given an opportunity to present their case, consistent with the objects of the QCAT Act and within the demands of the jurisdiction. Extending the requirements of natural justice beyond this is inconsistent with the QCAT Act and would make the jurisdiction cumbersome. [42] Mr Cook’s failure to apply for an adjournment at the hearing is not a denial of natural justice. This is because Mr Cook had an obligation to act in his own best interests: The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, ‘… the public as a whole, not 30 QCAT Act, s 28(3)(a). 31 Kioa v West (1985) 159 CLR 550, 584-585. 32 Creek v Raine & Horne Mossman [2011] QCATA 226, [15] (Wilson J). 33 QCAT Act, s 4(c). 34 Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe [2013] QCATA 212, [46] (Wilson J). 35 QCAT Act, s 28(3)(b). 36 Ibid, s 28(3)(c). -- 10 of 12 -- 11 merely the parties to the proceedings’. Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.37 [43] The onus is always upon Mr Cook to present his case and make relevant applications, including, if appropriate, for an adjournment – although it is unlikely any such application would have been granted in circumstances where he was given a reasonable opportunity to present his case consistent with the Tribunal’s mandate. [44] The learned Adjudicator conducted the hearing appropriately. [45] Mr Cook and Ms Lantos were given natural justice. [46] This ground of appeal is dismissed. Should the Appeal Tribunal grant leave to appeal? [47] The appeal process is not an opportunity for a party to again present their case.38 It is the means to correct error by the Tribunal that decided the proceeding.39 Having read the transcript and considered the evidence, I find nothing to indicate that the learned Adjudicator acted on a wrong principle, or made mistakes of fact affecting the decision, or was influenced by irrelevant matters. [48] The learned Adjudicator’s decision was entirely appropriate and I can find no reason to come to a different view. The learned Adjudicator had evidence upon which he could properly reach the conclusion that he did.40 [49] Leave will not be granted where a party simply desires to re-argue the case on existing or additional evidence.41 A clear purpose of the requirement for leave, before a party has the right to appeal, is to prevent any attempt to simply conduct a retrial on the merits of the case.42 [50] There is no question of general importance for the Appeals Tribunal to determine. There is no reasonably arguable case that the learned Adjudicator was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused. 37 Creek v Raine & Horne Mossman [2011] QCATA 226, [13], citing with approval Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217. 38 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39, [9]. 39 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39, [9]. 40 Selvanayagam v University of the West Indies [1983] 1 All ER 824, 826. 41 Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152, [12] (Wilson J). 42 Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152, [12] (Wilson J). -- 11 of 12 -- 12 What is the appropriate Order? [51] The appropriate Order is: 1. Leave to appeal is refused. -- 12 of 12 --