Ammer v Degen [2016] QCATA 72

CITATION: Ammer v Degen [2016] QCATA 72 PARTIES: Beate Ammer (Applicant/Appellant) v Del Degen (Respondent) APPLICATION NUMBER: APL528 -15 APL025 -16 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM DELIVERED ON: 19 May 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where termination by consent – where counterclaim for compensation - whether grounds for leave to appeal APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where lessor claim for compensation – where electricity payable by tenant – where tenant alleged use by lessor – where Tribunal apportioned electricity – where solar panels – where tenant claimed no benefit from solar panels – where no input from panels – whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Pickering v McArthur [2005] QCA 294 Chambers v Jobling (1986) 7 NSWLR 1 APPEARANCES and REPRESENTATION (if any): -- 1 of 4 -- 2 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 [1] Beate Ammer rented one of three houses on a property at Knapp’s Creek from Del Degen. Ms Degen applied for an order terminating the tenancy and, by consent, the Tribunal did terminate the tenancy on 5 November 2015. [2] In a separate application, Ms Ammer applied for the return of her bond. Ms Degen filed a counter-application for compensation. The Tribunal ordered Ms Ammer pay Ms Degen $1,575.00, and that the bond be applied in part satisfaction of that amount. [3] Ms Ammer wants to appeal the Tribunal’s decisions. Because these are appeals from a decision of the Tribunal in its minor civil disputes jurisdiction, leave is necessary.1 Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.2 [4] In relation to the termination order, Ms Ammer says the Tribunal did not take into account her counter-application for compensation. In relation to the compensation claim, Ms Ammer says that she was not afforded natural justice because she disagrees with the Tribunal’s decision. The termination application [5] The transcript of proceedings clearly records that Ms Ammer agreed to terminate the tenancy. In fact, she agreed to terminate the tenancy before the day nominated by Ms Degen’s representative.3 Given that was the only matter before the Tribunal, and Ms Ammer agreed to terminate the tenancy, it is difficult to see how the Tribunal fell into error. [6] Ms Ammer did raise the issue of compensation. The Tribunal, properly, told Ms Ammer that she should file an application for compensation.4 The Tribunal discussed with Ms Ammer where she might file such an application.5 The Tribunal was not in error in its approach. The application for the return of the bond 1 QCAT Act s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 at [3]. 3 Transcript of Proceedings, Del Degen v Beate Ammer (QCAT, MCDT125-15, Adjudicator LeMass, 5 November 2015) (‘Transcript 5 November 2015’) pages 1-12, lines 12 – 21; page 1-12, line 46 to page 1-13, line 3; 1-14, line 1. 4 Transcript 5 November 2015 page 1-14, lines 7- 9. 5 Transcript 5 November 2015 page 1-22. -- 2 of 4 -- 3 [7] The Tribunal gave its decision about the termination on 5 November 2015. Ms Ammer filed an application for return of the bond on 18 December 2015. Despite her discussion with the Tribunal six weeks earlier, Ms Ammer did not also apply for compensation. [8] The task for the Tribunal was to decide whether: Ms Ammer left the tenancy in the same state as it was when she took possession; whether there were arrears of rent; and whether there was an outstanding electricity bill. [9] The Appeal Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.6 An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.7 [10] Ms Ammer did not dispute the fact that rent was owing.8 She did, later, dispute the amount owing because she thought she had to pay $270.00 per week not $280.00.9 The Tribunal found that the lease document was clear; it showed a rent of $280.00 per week. The evidence can support that finding and I can find no compelling reason to come to a different view. [11] Ms Ammer disputed the electricity on two grounds. Firstly, she said that the rent included electricity. The tenancy agreement she signed shows that she was responsible for paying 100% of the electricity. The Tribunal did not err in finding that Ms Ammer had to pay electricity. [12] The second ground was that the electricity circuit also serviced facilities used by the lessor. The Tribunal reduced the electricity due from $1197.96 to $900.00, acknowledging the difficulty of that calculation without precise evidence.10 [13] Ms Ammer makes a number of submissions on appeal, some of which are new submissions but none of which is supported by any evidence. Ms Ammer says she supplied witnesses to the Tribunal. She filed a statutory declaration from Narelle Woodford. Ms Woodford stated that she saw the shed lights “always” left on during the day and a freezer full of meat. The Tribunal read that statement.11 [14] The Tribunal did the best it could with the limited evidence available. In fairness to Ms Ammer, the Tribunal refused to consider evidence that Ms Degen’s representative wanted to provide by bringing it up on his mobile 6 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. 7 Chambers v Jobling (1986) 7 NSWLR 1 at 10. 8 Transcript of Proceedings, Beate Ammer v Del Degen (QCAT, MCDT153-15, Adjudicator Howe, 14 January 2016) (‘Transcript 14 January 2016’) page 1-10, line 41. 9 Transcript 14 January 2016 page 1-11, lines 28-47. 10 Transcript 14 January 2016 page 1-59, lines 35-40. 11 Transcript 14 January 2016 page 1-32, line 18 to page 1-33, line 40. -- 3 of 4 -- 4 phone.12 I can find no compelling reason to come to overturn the Tribunal’s finding of fact. [15] Ms Ammer also states that she should receive the benefit of the solar panels on the roof of the tenancy. For the period 28 May 2015 to 25 August 2015, there was no energy fed into the grid from the solar panels. The reading shows a contribution of zero kilowatts. Therefore, there was no benefit from the solar panels and the Tribunal did not err in failing to take the solar panels into account. [16] There is no reasonably arguable case that the Tribunal was in error. Leave to appeal should be refused. 12 Transcript 14 January 2016 page 1-24. -- 4 of 4 --