Anglo Coal Dawson Management Pty Ltd v Walmoss Pty Ltd t/as Ray White Biloela [2016] QCATA 8

CITATION: Anglo Coal Dawson Management Pty Ltd v Walmoss Pty Ltd t/as Ray White Biloela [2016] QCATA 8 PARTIES: ANGLO COAL DAWSON MANAGEMENT PTY LTD (Applicant/Appellant) v WALMOSS PTY LTD t/as RAY WHITE BILOELA (Respondent) APPLICATION NUMBER: APL143-15 MATTER TYPE: Appeals HEARING DATE: 15 October 2015 HEARD AT: Brisbane DECISION OF: Justice Carmody DELIVERED ON: 5 January 2016 DELIVERED AT: Brisbane ORDERS MADE: THE APPEAL TRIBUNAL ORDERS THAT: 1. Leave to appeal is refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – where the respondent was a property manager for the owner of a dwelling – where the respondent, for the owner, leased the premises to the applicant – where the applicant subleased the premises to a subtenant – where the subtenant installed framing hooks in the dwelling – where the subtenant removed the framing hooks on the termination of the tenancy – where the subtenant sought to restore the premises by patching over the damage caused to the wall – where the applicant filed an application with QCAT to seek release of the bond – where the respondent filed a counter-application for compensation for the cost associated with restoring and repainting the dwelling – where the Magistrate ordered the respondent to pay the costs associated with repainting the premises, and the Residential -- 1 of 8 -- 2 Tenancy Authority to release the applicant’s bond – where the applicant filed an application for leave to appeal and appeal against the decision of the Magistrate on the ground of factual error – whether the Magistrate committed any legal, factual or discretionary error allowing appellate intervention. Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 8, 32, 142, sch 3 Bienstein v Bienstein [2003] HCA 7 Bruce Moon v Office of State Revenue (unreported, Queensland Civil and Administrative Appeal Tribunal, APL213-15, 4 December 2015, Carmody J) Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 62 ALR 53 Cachia v Grech [2009] NSWCA 232 Calypso Fisheries Pty Ltd v Chief Executive of Department of Employment, Economic Development & Innovation [2011] QCATA 24 Chambers v Jobling (1986) 7 NSWLR 1 Dearman v Dearman (1908) 7 CLR 549, 561 Fox v Percy (2003) 214 CLR 118 Devries v Australian National Railways Commission (1993) 177 CLR 427 Eileen Reed v Department of Public Housing and Works (unreported, Queensland Civil and Administrative Appeal Tribunal, APL484-15, 20 November 2015, President Thomas) Fox v Percy (2003) 214 CLR 118 Karim v Council of the New South Wales Bar Association [2005] NSWCA 93 Mobile Bulding System International Pty Ltd v Hua [2014] QCATA 336 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Reihana v Beenleigh Show Society [2015] QCATA 170 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers without attendance of either party under s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). -- 2 of 8 -- 3 REASONS FOR DECISION [1] This is an application for leave to appeal filed by the applicant on 7 April 2015 against a decision of the Tribunal exercising its minor civil dispute jurisdiction in respect of a residential tenancy dispute. [2] On 11 February 2015 the Magistrate constituting the Tribunal ordered that: 1. the applicant pay the respondent $3,300.00, plus the filing fee, plus full compensation; 2. the Residential Tenancies Authority pay the respondent $1,840.00, being the rental bond in partial satisfaction of the order. [3] The applicant declined to provide any submissions other than those in the application for leave to appeal, which are ambiguous and truncated. The respondent did not file any submissions in response to the application. JURISDICTION [4] Sections 26, 27 and 142 of the QCAT Act define the jurisdiction of the Appeal Tribunal. The Appeal Tribunal has jurisdiction to hear an appeal against a decision of the Tribunal, exercising its original jurisdiction,1 if a judicial member did not constitute the Tribunal in the proceeding.2 [5] The applicant will require leave because: 1. the applicant is appealing a decision of the Tribunal exercising its minor civil dispute jurisdiction;3 and 2. the applicant is appealing a decision of the Tribunal on the basis of a question of fact or mixed question of law and fact.4 LEAVE TO APPEAL [6] The appeal will not commence until the Appeal Tribunal grants leave to appeal. The Appeal Tribunal may grant leave to appeal on any one or more of the grounds of appeal enumerated by the applicant. [7] The applicant will only obtain leave to appeal if: 1 See: Mobile Bulding System International Pty Ltd v Hua [2014] QCATA 336; Eileen Reed v Department of Public Housing and Works (unreported, Queensland Civil and Administrative Appeal Tribunal, APL484-15, 20 November 2015, President Thomas); Bruce Moon v Office of State Revenue (unreported, Queensland Civil and Administrative Appeal Tribunal, APL213-15, 4 December 2015, Carmody J); Reihana v Beenleigh Show Society [2015] QCATA 170. 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(1). Note that s 8 and Sch 3 of the Act define “judicial member” to exclude a Magistrate. 3 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i). “Minor civil dispute” is defined in s 8 and sch 3 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). “Prescribed amount” is defined in s 8 and sch 3 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) as $25,000. 4 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(b). -- 3 of 8 -- 4 1. the applicant has a reasonable argument that the original decision was infected by legal, factual or discretionary error;5 2. the error caused a substantial injustice to the applicant;6 and 3. there is a reasonable prospect the applicant will obtain substantive or effective relief.7 [8] An application for leave is a preliminary hearing of the Appeal Tribunal. The Appeal Tribunal is cautious not to prejudge the merits of the case. Nevertheless, it must be satisfied the applicant has reasonable prospects of success, and more than merely a “bona fide challenge”.8 [9] The applicant’s enumerated grounds of appeal raise questions of fact, or mixed questions of law and fact. The Appeal Tribunal will not interfere with the findings of fact of the original decision-maker if the evidence is capable of supporting their conclusions.9 [10] However, if the Appeal Tribunal finds that the original decision-maker was in error, making due allowance for the considerable advantages of the original decision-maker in directly observing the evidence and the disadvantage of the Appeal Tribunal in proceeding primarily from the record, the Appeal Tribunal must not eschew giving effect its own determinations.10 [11] If the findings of fact are based on evidence in respect of which the original decision-maker possesses a manifest and incontrovertible advantage, such as the credibility of witnesses appearing to give oral testimony, the Appeal Tribunal will only interfere with the decision of the original decision-maker where it is “contrary to compelling inferences”,11 “glaringly improbable”,12 or “inconsistent with facts incontrovertibly established by the evidence”.13 SUBSTANTIVE ARGUMENTS [12] The grounds of appeal enumerated by the applicant in the application for leave are infelicitously expressed. They are paraphrased as follows: 1. the Magistrate erred by referring to the repairing of damage made by certain hanging hooks being removed, whereas the material shows only minor scuff marks at the point of entry; 2. the Magistrate erred by stating that damage had been caused to the bathroom, but the photographs only show the lavatory area; 5 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 6 Bienstein v Bienstein [2003] HCA 7, [9]; Cachia v Grech [2009] NSWCA 232, [2]. 7 Calypso Fisheries Pty Ltd v Chief Executive of Department of Employment, Economic Development & Innovation [2011] QCATA 24. 8 Karim v Council of the New South Wales Bar Association [2005] NSWCA 93, [45]. 9 Dearman v Dearman (1908) 7 CLR 549, 561; Fox v Percy (2003) 214 CLR 118, 125- 126. 10 Fox v Percy (2003) 214 CLR 118, 218; Chambers v Jobling (1986) 7 NSWLR 1, 10. 11 Chambers v Jobling (1986) 7 NSWLR 1, 10. 12 Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 62 ALR 53, 57. 13 Devries v Australian National Railways Commission (1993) 177 CLR 427, 479. -- 4 of 8 -- 5 3. the Magistrate erred by mentioning multiple tenants, whereas the respondent only sublet the premises to one tenant; 4. the Magistrate erred by failing to take into consideration the fact that the entry condition report referred to “freshly painted walls”, whereas the premises had been previously leased to another tenant; 5. the Magistrate erred by concluding that there were hooks in the garage; 6. the Magistrate erred by failing to take into account verbal instructions given by the real estate agent to the tenant to remove all hooks; and 7. the Magistrate erred by failing to find that the amount quoted to repaint the relevant sections of the premises were excessive. [13] The Appeal Tribunal has examined the exhibits adduced in the original proceedings. Although the Appeal Tribunal observes that the photographs are, in some respects, of poor quality, the Magistrate also received oral testimony from the respondent regarding the damage caused to the walls of the dwelling by the removal of the hanging hooks. [14] The Appeal Tribunal accepts that the finding of the Magistrate that damage had been caused to the walls was reasonably open on the evidence. The Appeal Tribunal, proceeding on the record, does not reach a countervailing finding. Therefore, the applicant has failed to establish any factual error of the Magistrate in respect of the first ground of appeal. [15] The Appeal Tribunal considers the second ground of appeal to be abstruse. It is unclear whether the applicant claims that the Magistrate erred by incorrectly stating damage was caused to the bathroom when it was in fact caused to the lavatory, or whether the applicant claims the Magistrate erred by allowing compensation for restoration of the bathroom. [16] If it is the former, the Appeal Tribunal finds that an errant reference to a bathroom (which is, not infrequently, a euphemism used to describe a lavatory), causes no substantial injustice and would not have modified the decision of the Appeal Tribunal. [17] If it is the latter, the Appeal Tribunal observes that the trade estimate does refer to repainting of two walls of the bathroom. Nevertheless, the appraisal makes no reference to repainting of the lavatory. The Magistrate appears to have found, quite correctly, that the painter, Mr Wayne Lyell, was deploying the noun “bathroom” to describe the lavatory. This is compatible with the euphemistic and idiomatic use of “bathroom” described earlier. [18] In any event, the Appeal Tribunal did not rely on the quote of Mr Lyell for the repainting of the premises. Rather, it relied on the estimate provided by Mr Steven Hicks and Mrs Belinda Hicks, which did not refer to repainting of the bathroom. Therefore, any error of Mr Lyell in examining the scope of the restoration works could not have affected the Magistrate’s determination of the quantum of compensation. -- 5 of 8 -- 6 [19] Regardless of the correct construction of the second ground of appeal, the Appeal Tribunal finds that it discloses no legal, factual or discretionary error of the Magistrate. Leave to appeal should not be granted on this ground. [20] The third ground of appeal claims that the Magistrate erred by referring to multiple subtenants, when there was only one. Although the Magistrate has, on occasion, used the plural “subtenants” to refer to the tenant, it is merely an erroneous form of expression. The Magistrate does not appear to have been mistaken as to the actual number of subtenants. Even if she was, nothing of significance would turn on the quantity of subtenants. [21] It is unreasonable to expect any decision-maker giving ex tempore reasons to employ flawless syntax. In high volume jurisdictions, any petitions for the eloquence of Cicero, or grammar of Wittgenstein, must give way to the more prosaic demands of speed, efficiency, and effectiveness. [22] An Appeal Tribunal does not search the decisions at first instance for minor grammatical peccadilloes and, once discovered, seize upon them to allow an appeal in favour of an otherwise thoroughly unmeritorious applicant. This is a tribunal of law; not a tribunal of grammarian sophistry. This ground of appeal is an abuse of process, and leave shall not be entertained thereon. [23] The fourth ground of appeal claims that the Magistrate erred by failing to consider that the entry condition report referred to “freshly painted walls”, when there was a previous tenant. The phrase “freshly painted walls” is hardly one of unerring precision – it may be a metaphorical description of the apparent state of a surface, as distinct from a direct reference to the time at which the painting took place. [24] Even assuming the phrase “freshly painted walls” possesses a distinctly temporal denotation, this would not change the decision of the Magistrate. There were no patches or damage to the wall before the tenant assumed occupation; there was at the end of the tenancy. This is enough, caeteris paribus, for the respondent to recover. Leave should not be granted on this ground of appeal. [25] The fifth ground of appeal says nothing more than “there we (sic) no hooks in the garage.” To the extent this sentence fragment is coherent, it appears to complain about the scope of Mr Lyell’s quote, which contemplated the repainting of the garage. [26] The transcript shows the Magistrate was aware of this departure from the evidence before the Tribunal. Even if she was not, Mr Lyell’s estimate did not form the basis for quantifying compensation; the Tribunal relied on the quote of Mr and Mrs Hicks. Leave should not be granted on this ground. [27] The fifth ground of appeal claims that the Magistrate erred in failing to consider verbal instructions given by the respondent to the tenant. [28] The transcript shows that the applicant told the Magistrate that an unknown agent of the respondent, on an unidentified date, made a non-particularised -- 6 of 8 -- 7 statement, not evidenced in any written note or memorandum, at some time before the exit inspection, to the effect that the hooks should be removed. [29] Although the applicant claimed in the proceedings that the statement could be established by written evidence not in their possession at the time of the oral hearing, it was not adduced on appeal. Further, the applicant did not request an adjournment to provide an opportunity to present the evidence. [30] This hearsay evidence should not have been admitted, much less relied on by the Magistrate, to establish the truth of the facts asserted. It is unreliable, incredible, and self-serving, and inconsistent with other evidence supplied by the respondent. Leave to appeal should not be granted on this ground. [31] The seventh ground of appeal is the Magistrate erred by failing to consider that the estimate “seem (sic) to be excessive for a patch repair job” notwithstanding that “alternate quotes were not provided by the tenant”. [32] The respondent presented the Tribunal with two estimates by professional and ostensibly independent tradespersons. Both estimates were within a similar price range, and neither appeared inherently unreasonable. The applicant failed to adduce any counter-estimates, and furnished no factual or legal basis on which the Tribunal might doubt the veracity of the estimates. The applicant has no industry experience or other special skills or expertise which would make it qualified to evaluate the reasonableness or exactitude of appraisals for interior repainting. [33] In such circumstances, the Magistrate was enjoined to accept the uncontradicted evidence of the respondent regarding the cost of repainting. The Tribunal used the lower of the two estimates to quantify compensation. [34] It would have been erroneous for the Tribunal to depart from the tendered quotes, without any countervailing evidence, for the quantification of compensation. Leave to appeal should not be granted on this ground. CONCLUSION [35] The applicant has failed to demonstrate any reasonably arguable case that the original decision was infected by factual, legal or discretionary error. In several cases, if any error existed, it caused no injustice. The futility of the applicant’s arguments may explain its apathetic prosecution of the appeal. [36] This appeal precariously stands on the threshold of being a gross abuse of process. Parties should be deterred from engaging in similar self-indulgent practices, which are deserving of the Tribunal’s disdain and contempt. [37] It is no excuse that the applicant is a self-represented litigant; no reasonable person could have considered that the application for leave, unsupported by meaningful evidence or submissions, had any real prospects of success. [38] It is time to end this profligate and wasteful allocation of judicial resources. Leave to appeal should be refused. -- 7 of 8 -- 8 ORDERS [39] It is the decision of the Appeal Tribunal that leave to appeal is refused. -- 8 of 8 --