Amber Werchon Property on Behalf of Rose Bell v Tiana Martha Watene-Withers and Shane Phillip Withers [2016] QCATA 68

CITATION: Amber Werchon Property on Behalf of Rose Bell v Tiana Martha Watene-Withers and Shane Phillip Withers [2016] QCATA 68 PARTIES AMBER WERCHON PROPERTY ON BEHALF OF ROSE BELL (Appellant) V TIANA MARTHA WATENE-WITHERS, SHANE PHILLIP WITHERS (Respondent) APPLICATION NUMBER: APL 530-15 MATTER TYPE: Appeal HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Carmody DELIVERED ON: 16 May 2016 DELIVERED AT: Brisbane ORDERS MADE: IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT: 1. The appeal is partially allowed. 2. The amount awarded to the respondents is varied by $114.50, being the difference between the $300 awarded for the pool chemicals and the documentary supporting evidence. 3. Therefore, the applicants must pay the respondents a sum in the amount of $1,637.49. 4. If Amber Werchon Property on behalf of Rose Bell has paid Tiana Martha Watene-Withers and Shane Phillip Withers the amount of $1751.99 pursuant to the Minor Civil Dispute order dated 9 December 2015, Tiana Martha Watene-Withers and Shane Phillip Withers shall refund the amount of $114.50 to -- 1 of 4 -- 2 Amber Werchon Property on behalf of Rose Bell, by: 4:00pm om 23 June 2016 CATCHWORDS: APPEAL – rent reduction – loss of amenity – failure to take into account a relevant consideration – mistake of fact – failure to verify the facts – whether findings of fact reasonably available on the evidence APPEARANCES and REPRESENTATION (if any): 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] This is an application by a landlord for leave to appeal based on two alleged errors of fact in the Tribunal’s decision to award the respondents the sum of $1,751.99 in a tenancy dispute. [2] The first mistake relied on relates to an asserted failure to take into account relevant considerations in reducing rent for an “unswimmable” pool. The other concerns the amount awarded for pool chemicals allegedly paid for during the tenancy for no practical benefit. The “failure to consider” ground [3] The Tribunal discounted 26 weeks’ rent by $40 per week for the “unswimmable” pool. [4] The applicants assert that the Tribunal, in finding the pool was unfit and therefore unusable for its intended purpose, failed to consider the “fact” that the pool was, in fact, swimmable. [5] The transcript records at 1-3:10 the following exchange after the delivery of the decision in issue: UNIDENTIFIED SPEAKER: With due respect, your Honour, we actually have got evidence here from the pool man to say that the pool is swimmable and it’s never not been swimmable. BENCH: Well, with all due respect, I’ve heard this matter on about four different occasions and asked for all the evidence that you had to produce. I have made my decision on the basis of what was produced to me during those hearings. If you have any complaints about my decision then you’re welcome to appeal. [6] It is clear the Magistrate based the decision on the material presented in the case. -- 2 of 4 -- 3 [7] In these proceedings, the applicants filed an email and a letter from the pool maintenance service provider to the effect that the pool had always been suitable and just required more chemicals due to deterioration of the pool’s surface. [8] However, evidence that could have been but was not used in a hearing to reach a decision at issue is not admissible in later appeal proceedings, except as a matter of discretion, usually in circumstances that do not exist here, to change a dissatisfactory outcome. A failure to consider a complaint must relate to relevant information likely to produce the reverse result. [9] It is not an appealable error of law for the Tribunal to decide a case on tendered materials, or fail to consider untendered or forensically untested documents. In any case, as the respondents rightly point out, the pool was only a factor in the Magistrate’s decision to award rent reduction. This is confirmed by the transcript at 1-3:5: BENCH: (…) I am prepared to grant a rent reduction in relation to the pool issues and the second bedroom not being able to be used for that purpose and also in relation the water damage to that room in the sum of $40 per week – UNIDENTIFIED SPEAKER: Excuse me. BENCH: --- for 26 weeks, which is $1040. Mistake of fact [10] The applicants contend the award of $300 in relation to the pool chemicals was excessive because the invoices supplied by the respondent and its own tenant ledger substantiate only $185.50 and no other contrary evidence was adduced by either party at first instance. [11] There being no explanation for the $300 awarded or evidence to support compensation or reimbursement of more than $185.50, the decision will be varied down to $185.50 to prevent substantial financial injustice the apparent miscalculation would otherwise cause. The respondents’ additional claims [12] The respondents are also dissatisfied with the original decision because the amount does not include:  $108.70 – court application fee;  $70.00 – lounge cleaning; and  $125.00 – water damage [13] However, leave to appeal was not applied for in accordance with the QCAT Act or Rules and, therefore, the complaint is not justiciable. -- 3 of 4 -- 4 Costs [14] The applicants also ask the Tribunal to reimburse its filing fees for this application, but have not adduced any evidence or made submissions about why this would be in the interests of justice. This claim is therefore rejected. ORDERS [15] It is the decision of the Appeal Tribunal that: 1. The appeal is partially allowed. 2. The amount awarded to the respondents is varied down by $114.50, being the difference between the $300 awarded for the pool chemicals and the amount shown from the documentary supporting evidence. 3. Therefore, the applicants must pay the respondents a sum in the amount of $1,637.49. 4. If Amber Werchon Property on behalf of Rose Bell has paid Tiana Martha Watene-Withers and Shane Phillip Withers the amount of $1751.99 pursuant to the Minor Civil Dispute order dated 9 December 2015, Tiana Martha Watene-Withers and Shane Phillip Withers shall refund the amount of $114.50 to Amber Werchon Property on behalf of Rose Bell, by: 4:00pm om 23 June 2016 -- 4 of 4 --