Ammer v Koster [2017] QCATA 98

CITATION: Ammer v Koster [2017] QCATA 98 PARTIES: Beate Ammer (Applicant/Appellant) v Debra Koster (Silverleaves) (Respondent) APPLICATION NUMBER: APL418-16 MATTER TYPE: Application and Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Carmody DELIVERED ON: 12 September 2017 DELIVERED AT: Brisbane ORDERS MADE: THE APPEAL TRIBUNAL ORDERS THAT: 1. Leave to appeal is refused. CATCHWORDS: APPEAL - LEAVE TO APPEAL - MINOR CIVIL DISPUTE- RESIDENTIAL TENANCY DISPUTE – where tenant claims loss of chance to call police evidence – loss of amenities – whether application for adjournment was unfairly refused – where the findings and inferences of fact underpinning the tribunal’s decision were credit and demeanour based and reasonably open Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 32, 100 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 65, 66,137, 188, 362, 419 APPEARANCES and REPRESENTATION (if any): 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 of 3 -- 2 [1] The respondent was the lessor of residential premises (a cabin on her property) at Mt Meppo for three months from 20 July 2016 under a tenancy agreement. The applicant paid a rental bond of $680.00 on 26 August 2016. [2] On 6 October 2016 the respondent applied for tribunal compensation orders under ss 137 and 419 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) for the bond release ($388.57) to cover rent arrears and non- payment of bills for power ($193.80), water ($190.00) and damage/cleaning/items stolen ($740.00) on a total of $1,512.37. [3] The applicant applied to QCAT for termination of the tenancy on 29 August 2016 (after only 5 weeks) for excessive hardship due to a ‘serious breakdown’ in communication and the overall tenancy relationship. [4] Sometime after the 6th week into the tenancy period the applicant alleges that the respondent turned off the water and part of the electricity making the premises ‘unliveable’. [5] On 4 September 2016 the applicant served a notice of intention to leave on that ground and for unremedied breach (failure to return ‘stolen’ property). [6] She paid rent up to 7 September 2016 and vacated that day. Her bond claim to the RTA was disputed by the respondent who cross claimed the full amount. [7] The dispute was listed for hearing on 4 November 2016. For some reason the notice of hearing did not reach the applicant until 22 October 2016. The applicant’s claim was dismissed for want of proof. Her allegations that the electricity and water were turned off were not substantiated to the tribunal’s satisfaction. [8] The bond was apportioned by the tribunal $600 ($388.57 for rent; $100 for electricity and $112.50 for filing costs rounded down) to the respondent and $80 to the applicant. [9] She applies for leave to appeal on the grounds that: (a) she lost the chance to call police evidence confirming the substandard state of the amenities because the fortnight between when she received notice of the hearing date and when it started was too short to obtain documents under right to information legislation; (b) she was unjustly deprived of a real prospect of a better result because her application for an adjournment was unfairly refused; (c) the tribunal erred by failing to apply the relevant provisions of ss 65-66 and 188(4) RTRA Act in relation to the condition of the premises and the s 362 mitigation of loss requirement; -- 2 of 3 -- 3 (d) the order to pay $112.50 filing fees was contrary to the general no costs rule in s 100 QCAT Act and is beyond her reasonable means. [10] The applicant wants a new hearing and the return of $388.50 as compensation for the extra three weeks rent she had to pay while the premises were unfit for habitation and $112.50 filing costs viz., $500 in total. [11] The respondent disputes the alleged amenities breach. She characterises them as fictitious and vexatious. She denies the applicant was prejudiced or disadvantaged by the tribunal’s refusal to adjourn and says there is no demonstrable appellable error in need of correction to avoid any financial injustice or hardship to the applicant. [12] However, the RTI documents she attaches to her application are entirely self-corroborative and do not in fact record any independent observations or substantiate the truth of her reported complaints. [13] Although the police reports are admissible despite their hearsay and self corroborative nature they have marginal relevance (apart from their contemporaneity) and carry little weight. [14] Their contents do not put the appeal tribunal in any better position than the tribunal for assessing the relative merits of the dispute. [15] The findings and inferences of fact underpinning the tribunal’s decision were credit and demeanour based. They were reasonably open. There is no demonstrated justification for disturbing them on appeal even if the police evidence was admitted. [16] Filing costs are recoverable. Section 100 QCAT Act is concerned with the costs incurred in a proceeding not the fees required by statute to start one. [17] The leave requirement of a reasonably arguable appealable error is not met. [18] The application is refused accordingly. -- 3 of 3 --