Dunshea v Collins [2015] QCATA 45

CITATION: Dunshea v Collins [2015] QCATA 45 PARTIES: David John Dunshea (Applicant/Appellant) v Bron Collins (Respondent) APPLICATION NUMBER: APL446-14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice D Thomas, President DELIVERED ON: 27 March 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – CLAIM FOR BOND – where claim for bond – where unit old and not renovated for many years – where no entry condition report – where no exit condition report – where claim for painting and carpet disallowed – whether evidence supported tribunal decision – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 32, 142(3)(a)(i) Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 66 Pickering v McArthur [2005] QCA 294 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”). -- 1 of 4 -- 2 REASONS FOR DECISION [1] Mr Dunshea lived in his Noosa unit for a very long time. In August 2013, Pelicans (Qld) as trustee for a trust bought the unit complex. It increased Mr Dunshea’s rent and started renovating the units. Mr Dunshea gave notice of his intention to leave and did, in fact, leave. He then applied for the return of his bond of $1,460. He named Ms Collins as respondent, not Pelicans. Ms Collins was Pelicans’ agent. [2] Mr Dunshea had paid his rent in advance so had a credit of $900. Pelicans counterclaimed significant cleaning and repair costs. A Magistrate, sitting as a member of the tribunal, ordered that $187 of the bond be paid to Ms Collins and the balance paid to Mr Dunshea. [3] Mr Dunshea 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 [4] Mr Dunshea submits that the learned Magistrate erred in referring to the applicant as the respondent and the respondent as the applicant. The transcript does show some confusion about detail of the final order3 but, reading the transcript as a whole, I am satisfied that the learned Magistrate identified the parties correctly. The learned Magistrate is not in error as to that issue. [5] Mr Dunshea submits that the learned Magistrate failed to make an allowance for the rent overpaid. That is not correct. The learned Magistrate started her calculations4 from the position that Pelicans owed Mr Dunshea $900 for overpaid rent. She did make an allowance for that sum. [6] Mr Dunshea submits that the learned Magistrate failed to appreciate and make allowance for the fact that Pelicans was the proper respondent, not Ms Collins. As I have already observed, Mr Dunshea named Ms Collins in his application. The learned Magistrate should have formally corrected the name of the respondent. However, Mr Dunshea has not demonstrated that the learned Magistrate’s error resulted in a substantial injustice which requires correction. [7] Mr Dunshea submits that the learned Magistrate failed to take into account the fact that there was no entry condition report or exit condition report. Again, that submission is not correct. The learned Magistrate noted that there was no entry report. 5 She had earlier noted that this responsibility 1 QCAT Act s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 at [3]. 3 Transcript page 1-26, lines 1 – 5. 4 Transcript page 1-26, line 1. 5 Transcript page 1-21, line 13 – 16, 35 – 36. -- 2 of 4 -- 3 fell to Pelicans, as owner. 6 The learned Magistrate noted that there was a form of exit condition report.7 The exit condition report was Mr Dunshea’s responsibility.8 [8] Mr Dunshea submits that the learned Magistrate failed to consider that he left the unit cleaner than when he moved into the unit. The evidence does not go that far. Mr Dunshea told the learned Magistrate that, when they first rented the unit, it needed renovation,9 that he kept the place clean10 and that there were a myriad of problems with the unit.11 This is not evidence that the unit was delivered back to Pelicans in a better condition than when Mr Dunshea moved in. [9] Mr Dunshea submits that the learned Magistrate did not take into account that the unit had not been painted since 1975. Again, the transcript does not support this submission. The learned Magistrate noted that the unit was ‘extremely old’.12 She told Ms Collins that the tribunal would not compensate Pelicans for things that are just ‘age related’.13 She did not allow Pelicans anything except basic cleaning costs. [10] Mr Dunshea submits that the learned Magistrate considered Pelicans’ photos when there was no evidence about when they were taken. The learned Magistrate noted that all she had was competing photos.14 She noted that the photos did not support Ms Collins claim for cleaning.15 She accepted the photos showed the windows were not clean but otherwise noted a lack of evidence to support Pelicans’ claim.16 I am not persuaded that the learned Magistrate was in error in accepting the limited evidence offered by Ms Collins’ photos. [11] Mr Dunshea submits there was no evidence that he smoked in the unit and, therefore, caused damage to it. He says, correctly, that he told the learned Magistrate he only smoked on the balcony.17 However, Mr Dunshea also admitted that he smoked inside the unit ‘beforehand’.18 The evidence can support the learned Magistrate’s finding and I can find no reason to come to a different view. [12] Finally, Mr Dunshea submits that Pelicans was attempting to make him liable for carrying out renovations to a very old unit. The learned Magistrate was alive to this issue. As I have already identified at [9], the learned Magistrate told Ms Collins that she would not get compensation 6 Transcript page 1-20, lines 25 – 27, 35 – 38. 7 Transcript page 1-24, lines 13 – 15. 8 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 66. 9 Transcript page 1-14, lines 38 – 40. 10 Transcript page 1-14, line 43. 11 Transcript page 1-14, line 44. 12 Transcript page 1-24, line 35. 13 Transcript page 1-17, lines 7 – 11. 14 Transcript page 1-21, line 16. 15 Transcript page 1-19, lines 23 – 24. 16 Transcript page 1-15, lines 11 – 12; page 1-21, lines 31 – 33. 17 Transcript page 1-23, lines 29 – 36. 18 Transcript page 1-23, line 36; page 1-24, line 1. -- 3 of 4 -- 4 for matters that were age related. The learned Magistrate’s decision confirms this approach. [13] The evidence can support the learned Magistrate’s decision and I can find no compelling reason to come to a different view. There is no reasonably arguable case that the learned Magistrate was in error. Leave to appeal is refused. -- 4 of 4 --