Amos v Krans & anor [2015] QCATA 69

CITATION: Amos v Krans & anor [2015] QCATA 69 PARTIES: Edward Amos (Applicant/Appellant) v Rata Krans Carly Little (Respondents) APPLICATION NUMBER: APL050 -15 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM DELIVERED ON: 27 May 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. Appeal allowed. 3. Rata Krans and Carly Little shall pay Edward Amos $600 for rent arrears by 24 June 2015. CATCHWORDS: APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – RESIDENTIAL TENANCIES – where claim for unpaid rent – where tribunal could not understand rental ledger – where tribunal did not adjourn to allow photos to be tendered – where tribunal did not call witness – where special condition as to condition of premises – where tenant alleged breaches of Residential Tenancies and Rooming Accommodation Act - whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28(3) Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 53, 83, 84, 88, 166(3), 185, 362, 421 Dearman v Dearman (1908) 7 CLR 549 -- 1 of 7 -- 2 Fox v Percy (2003) 214 CLR 118 Pickering v McArthur [2005] QCA 294 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Chambers v Jobling (1986) 7 NSWLR 1 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] Edward Amos is an experienced lessor. On 21 October 2014, Carly Little and Rata Krans returned the key to a tenancy they leased from Mr Amos. Mr Amos then filed an application for the bond to be paid to him. Two Justices of the Peace, sitting in the minor civil disputes jurisdiction of the tribunal, ordered the bond be paid to the tenants. [2] Mr Amos wants to appeal that decision. Because this is an appeal 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 [3] Mr Amos submits the tribunal erred in taking hearsay evidence from Ms Little. He submits the tribunal erred in the finding that Mr Amos’ rent card was “incomprehensible” and, therefore, failing to order that the tenants pay rent arrears. He submits the tribunal erred in giving too much weight to the re-letting of the tenancy. He submits the tribunal erred in failing to give weight to a statutory declaration from John Swain and refusing Mr Amos’ request to telephone Mr Swain from the hearing room. He submits the tribunal erred in finding they had no photographs of the condition of the tenancy. He submits the tribunal erred in finding there was no evidence of water charges, and failing to take evidence from Mr Swain about the state of the plumbing in the tenancy. [1] Mr Amos has filed fresh evidence with his application for leave to appeal. In particular, he filed copies of rental receipts and photographs showing the condition of the tenancy. [2] The appeals 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 such evidence must satisfy three tests. Could the parties have obtained the evidence with reasonable diligence for 1 QCAT Act s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 at [3]. -- 2 of 7 -- 3 use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?3 [3] An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party’s case at the initial hearing. Mr Amos should have had his complete file with him at the hearing, including the rental receipts. He does not explain why these documents were not available at the hearing. [4] Mr Amos did not have the photos available at the hearing. He correctly submits that he asked for an adjournment to enable him to produce the photos, which adjournment was refused4. As the tribunal identified, Mr Amos is an experienced lessor and, as his submissions on the application for leave to appeal revealed, experienced in tribunal hearings. He conceded that the tribunal welcomes photographic evidence to prove the condition of a tenancy5 and yet he took no steps to ensure that the photos were available for the hearing. The fresh evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Justices. Hearsay evidence [5] As the tribunal observed during the hearing6, it is not bound by the rules of evidence7. The hearsay evidence concerned arguments between Mr Amos and Mr Krans about the payment of rent. The tribunal could accept it; it was a matter for the tribunal to give the hearsay evidence the weight it deserved, in view of surrounding facts and circumstances. The hearsay evidence may have affected the tribunal’s view of the rental ledger but I am not persuaded that the acceptance of hearsay evidence, in itself, is a ground for appeal. The rental ledger [6] Mr Amos kept a manual ledger for the payment of rent. He provided a copy of the last page of the ledger to the tribunal. [7] I disagree with the tribunal’s finding that the ledger was incomprehensible. To the contrary, Mr Amos’ ledger is a clear record of payments. Mr Amos may not have complied with other requirements of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) – and I will deal with these matters later – but his ledger is clear. [8] The uncontested evidence was that Mr Amos received the key to tenancy on 21 October 20148. The ledger shows that rent was paid until 7 October 2014. On any view, Mr Amos was entitled to a further two weeks’ rent. 3 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408. 4 Transcript page 1-25, line 19 to page 1-26, line 25. 5 Submissions filed 13 March 2015. 6 Transcript page 1-18, lines 16 – 18. 7 QCAT Act s 28(3)(b). 8 Transcript page 1-14, lines 34 – 37. -- 3 of 7 -- 4 [9] Mr Amos also claimed an additional week’s rent for the tenants’ failure to give notice. The tenants submitted that Mr Amos told them to leave9. Mr Amos denied any such conversation10 but the tribunal accepted the tenants’ evidence11. [10] The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.12 An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.13 [11] The tribunal had the benefit of seeing both Ms Little and Mr Amos in person. They accepted Ms Little’s evidence and I can find no compelling reason to come to a different view. Mr Amos is entitled to $600 in unpaid rent but I am not persuaded that the tribunal erred in refusing to order a further $300 for the tenants’ failure to give notice. [12] I agree that Mr Amos’ re-letting of the tenancy was irrelevant. I am not persuaded that this issue, alone, influenced the tribunal to the extent that it is a ground for leave to appeal. Mr Swain [13] Mr Swain’s statutory declaration speaks to his work in removing rubbish from the tenancy. Ms Little pointed out to the tribunal that the body of the declaration was in Mr Amos’ handwriting14. The tribunal accepted the declaration because it was signed by Mr Swain15 and noted that it would be accepted for what it says16. [14] Mr Amos then invited the tribunal to ring Mr Swain17. The tribunal correctly pointed out that, if Mr Amos wanted to rely on Mr Swain‘s evidence, then it was up to Mr Amos to call him18. [15] Mr Swain’s declaration was of limited assistance. He did not speak to the cost of his work in removing rubbish. He did not state he was paid to remove the rubbish. He did not state he was a plumber or that the tenancy was water efficient. All of these matters were relevant to Mr Amos’ claim. He should have known that evidence was required. He could have called Mr Swain, even by telephone, even at that late stage in the hearing. 9 Transcript page 1-17, lines 16 – 20. 10 Transcript page 1-18, lines 39 – 41. 11 Transcript page 1-46, lines 12 – 14. 12 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125- 126. 13 Chambers v Jobling (1986) 7 NSWLR 1 at 10. 14 Transcript page 1-26, lines 42 – 43. 15 Transcript page 1-27, line 1. 16 Transcript page 1-27, line 22. 17 Transcript page 1-27, line 12. 18 Transcript page 1-27, lines 14 – 15. -- 4 of 7 -- 5 [16] I am not persuaded that the tribunal erred in failing, of its own volition, to call Mr Swain. [17] Mr Amos claimed the cost of his own labour for cleaning out the tenancy. The tribunal is slow to order compensation on this basis but it can do so if that costs equate with the reasonable cost of having the work done.19 Because Mr Amos could not demonstrate the state of the tenancy, the tribunal did not accept his claim for cleaning costs. If Mr Amos had presented evidence, I might have been inclined to accept that claim for compensation. Water charges [18] Mr Amos charged the tenants for all water used in the tenancy. A tenant may be required to pay all water charges only if the tenancy is water efficient20. The onus is on Mr Amos to prove that the tenancy is water efficient. He did not do so. [19] Even if Mr Amos had been able to demonstrate the premises were water efficient, he was claiming water charges that were billed to him in 2013 but not passed on to the tenants until the end of the tenancy agreement. Mr Amos has an obligation to mitigate any losses due to a breach of the tenancy agreement21. Saving up charges and presenting them at the end of the tenancy agreement does not demonstrate any mitigation of loss. Miscellaneous matters [20] Ms Little submitted that Mr Amos had committed a number of breaches of the Residential Tenancies and Rooming Accommodation Act in his management of this tenancy. I propose to comment on some of them. [21] Section 83 states that rent is to be paid in an approved way. Payment by postal order is not nominated as an approved way but the parties can agree that it is an approved way. Section 84 states that, where a tenancy agreement provides for payment of rent under an approved way, the lessor must give a tenant written notice of a choice of at least two other approved ways for payment of rent and advise the tenant of the costs associated with the approved way that is nominated in the tenancy agreement. [22] Ms Little submitted that Mr Amos did not comply with s 8422. It seems that Mr Amos thought that the tenancy agreement was enough to satisfy the provisions of s 84. If that is his assumption, it is incorrect. Mr Amos may well have been in breach of s 84, which attracts a penalty. [23] Ms Little also told the tribunal that she never received receipts or a ledger from Mr Amos. Section 88 requires the lessor to provide receipts. If Mr 19 Powercor Australia Ltd v Thomas [2012] VSCA 87 at [60]. 20 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 166(3). 21 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 362, 421. 22 Transcript page 1-12, lines 6 – 24. -- 5 of 7 -- 6 Amos did not provide receipts, he is in breach. Section 88 also attracts a penalty. [24] Mr Amos’ tenancy agreement has a special condition as follows: The tenant acknowledges the dwelling is let in “as is” condition as inspected and that no representations about the condition of the premises or promises to carry out any repairs have been made by the lessor and that the tenant has carried out his or her own investigations as to the suitability of the premises before entering into this agreement. [25] Section 185 sets out a lessor’s obligations. In particular, under s 185(2), a lessor must ensure that, at the start of a tenancy, the premises are clean, fit for the tenant to live in, and in good repair. During the tenancy, the lessor must maintain the premises so that they are fit to live in and in good repair23. [26] An agreement is void to the extent it purports to exclude, change or restrict the operation of the Act24. A person must not enter into an agreement with the intention of defeating the operation of the Act25. Mr Amos’ special condition has the appearance of a term designed to exclude the operation of s 185. If so, Mr Amos may be subject to a penalty. [27] Mr Amos should take great care in future to ensure that he complies with all provisions of the Residential Tenancies and Rooming Accommodation Act. The tribunal may refer matters of concern to relevant government departments. If similar activities by Mr Amos come to the tribunal’s attention in future, I will have no hesitation in referring them on for investigation. [28] On 18 December 2014, the tribunal received a letter from a firm of solicitors, purporting to act for Mr Amos. It enclosed a copy of a letter to the tribunal members and asked the tribunal to: … take whatever steps are necessary to correct this travesty of justice … In particular, please ensure that the bond is not paid out by the RTA until this travesty has been resolved. [29] The letter to the learned Justices, also dated 18 December 2014, explained Mr Amos’ rent card and concluded with these words: Please immediately vacate your flawed orders made yesterday and let us have your urgent confirmation the orders have been vacated. [30] This tribunal has been in operation since 2009. Surely even lawyers with only a passing interest in the tribunal should have realised by now that the tribunal has processes for appeals and stay applications, and that direct correspondence to tribunal members requesting a change to their decision is inappropriate. The correspondence is inappropriate and disrespectful. 23 Section 185(3). 24 Section 53(1). 25 Section 53(2). -- 6 of 7 -- 7 [31] Mr Amos told the tribunal that he had been a law clerk for a firm of solicitors for over 50 years. The typeface on the letters from the solicitor is similar to the typeface used by Mr Amos in his documents. The signature at the foot of the letters is similar to Mr Amos’ initials on the tenancy agreement. It would be a matter of great concern to the tribunal if Mr Amos has access to the firm’s letterhead and was able to produce letters in the firm’s name of which the principal of the firm had no knowledge. [32] As I have said, Mr Amos is an experienced lessor who has appeared in the tribunal many times. If, in fact, he instructed his solicitors to write in the tone of the letters of 18 December then Mr Amos has also engaged in disrespectful and inappropriate conduct. [33] Leave to appeal should be granted and the appeal allowed. Because the decision of 17 December 2014 has been carried out, I cannot set aside that order and substitute my own. Instead, I order that Carly Little and Rata Krans pay Edward Amos $600 for rent arrears within 28 days of today’s date. -- 7 of 7 --