Christiansen & Anor v Westbrook [2015] QCATA 44

CITATION: Christiansen & Anor v Westbrook [2015] QCATA 44 PARTIES: Kay Christiansen John LaFave (Applicants/Appellants) v Wendy Westbrook (Respondent) APPLICATION NUMBER: APL541-14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Acting Deputy President Stilgoe OAM DELIVERED ON: 19 January 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCIES – where lessor claim for compensation for cleaning post tenancy – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 139(5) Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 52, 53, 56, 58, 61, 506 Dearman v Dearman (1908) 7 CLR 549 Gerhardy v Brown (1985) 159 CLR 70 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Fox v Percy (2003) 214 CLR 118 Pickering v McArthur [2005] QCA 294 Chambers v Jobling (1986) 7 NSWLR 1 -- 1 of 7 -- 2 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] Ms Christiansen and Mr LaFave rented a property through Ms Westbrook. At the end of the tenancy, Ms Westbrook claimed $900 from the bond for cleaning. The tenants disputed that claim and wanted the $900 paid to them. A Magistrate, sitting in the minor civil disputes jurisdiction of the tribunal ordered that the disputed bond be paid to Ms Westbrook. He also ordered that the tenants pay Ms Westbrook a further $900. [2] Ms Christiansen and Mr LaFave want 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] The first ground of appeal is that the learned Magistrate did not consider the legislation relevant to the case. The tenants provided a list3 of ways in which Ms Westbrook had not complied with the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act) by not providing a copy of the written tenancy agreement4 and not reducing a special term to writing5. They say the learned Magistrate did not consider these issues. [4] Beaches of those provisions may result in disciplinary action and a fine6. For a breach of the requirement to give documents to a prospective tenant, the tribunal also has power7 to order a lessor pay an amount to a tenant. The power does not appear to relate to general compensation but, rather, to the return of deposits paid in ignorance of the terms of the tenancy agreement. Although the learned Magistrate did not turn his mind specifically to the submissions, I am not persuaded that he erred in his approach. [5] The second ground of appeal is that the learned Magistrate did not properly consider the signed entry condition report. At the hearing, the tenants submitted that, pursuant to s 506 of the RTRA Act, an entry condition report signed by both parties is evidence of the condition of the premises8. They submitted that the entry condition report showed that the tenancy was dirty and, therefore, the learned Magistrate should have 1 QCAT Act s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 at [3]. 3 Submissions pages 21, 22. 4 RTRA Act ss 58, 61. 5 Ibid ss 52, 56. 6 Ibid s 53. 7 Ibid s 60. 8 Submissions page 20. -- 2 of 7 -- 3 proceeded on this basis when deciding whether they had left the tenancy in the same condition. [6] The learned Magistrate accepted that the entry condition report indicated the tenancy was not clean and that ‘is something that’s going to be looked at a second time when you vacate the property’9. I am, therefore, satisfied that the learned Magistrate turned his attention to the entry condition report. [7] The flaw in the tenant’s argument is that s 506 does not say that the entry condition report is the only evidence that the learned Magistrate can consider. A signed entry condition report is some evidence, not incontestable evidence. The learned Magistrate went on to consider other evidence. There is no error in his approach. [8] The tenants submit that the learned Magistrate came to erroneous conclusions that were not based on fact or evidence. The first conclusion with which they take issue is that the tenants admitted that a dog and some cats were present in the house. The tenants submit that they did not admit they had cats in the house. [9] The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.10 An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.11 [10] It was a condition of the tenancy that, while the tenants could have pets, the pets had to remain outside. The tenants did admit they had a dog in the house.12 Ms Westbrook then told the learned Magistrate that the tenants had two cats.13 There was a discussion between the learned Magistrate and Ms Christiansen14: BENCH: If the cats come inside the house – or dogs, then you breach the contract. It’s as simple as that. MS CHRISTIANSEN: Yeah. Well, we admit that. But - - - BENCH: And I accept Mr Choy’s evidence that he found animal hair all over the place. MS CHRISTIANSEN: Well - no. MR LaFAVE: I don’t accept that. [11] Although there was no specific admission that the tenants had cats in the house, they admitted the dog was in the house, they did not deny they owned cats and they did not deny that the cats were in the house. 9 Transcript page 1-11, lines 42 – 45. 10 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125 – 126. 11 Chambers v Jobling (1986) 7 NSWLR 1 at 10. 12 Transcript page 1-10, lines 31 – 40. 13 Transcript page 1-11, line 7. 14 Transcript page 1-11, lines 14 – 17. -- 3 of 7 -- 4 The evidence supports the learned Magistrate’s findings and I can find no compelling reason to come to a different view. [12] The second conclusion that the tenants’ dispute is the learned Magistrate’s finding that there was animal hair throughout the house. The learned Magistrate referred to a photograph showing a dog in the house.15 The tenants argue that the photo does not support a finding that the dog was kept in the house nor that there was animal hair throughout the property. [13] Ms Christiansen told the learned Magistrate that ‘the dogs were not kept inside all the time … You know, there were numerous reasons that we had to bring the dogs inside from time to time’.16 There is enough evidence to find that the tenants kept the dog in the house even without reference to the photograph. I am not persuaded the learned Magistrate was in error. [14] The learned Magistrate’s finding about the presence of animal hair was based upon the evidence of Mr Choy, who cleaned the tenancy after Ms Christiansen and Mr LaFave left.17 That evidence could stand on its own, without reference to the photo. The photo merely confirms that the tenants let the dogs inside, which could account for the presence of animal hair. I can find no error in the learned Magistrate’s finding. [15] The tenants submit that the hearing was procedurally unfair because the learned Magistrate did not consider all of the material submitted. They list six examples: a) He did not consider the written statements and submissions they provided. b) He did not consider email and photographic evidence showing that Ms Westbrook agreed to pay $900 at the start of the tenancy for mowing but not cleaning. c) He did not consider the entry condition report. d) He did not consider the tenants’ photos showing the condition of the property at the start of the tenancy. e) He ignored photographic evidence showing the tenants had done extra work in response to Ms Westbrook’s list of issues at the end of the tenancy. f) He gave no consideration to evidence they submitted which showed that Ms Westbrook and Mr Choy’s evidence was false. [16] The learned Magistrate did not single out all of the documents and evidence to which he referred. He did say that he had considered all of the material.18 He heard from all of the witnesses and parties.19 There is 15 Transcript page 1-14, lines 15 – 20. 16 Ibid lines 22 – 25. 17 Ibid lines 16 – 17. 18 Ibid line 3. 19 Ibid lines 3 – 4. -- 4 of 7 -- 5 nothing in the transcript to support a submission that the learned Magistrate ignored evidence, or failed to consider it. The transcript, in fact, shows that the learned Magistrate did consider all of the evidence and statement but that he preferred the evidence of Ms Westbrook and Mr Choy. That does not mean that the learned Magistrate failed to provide procedural fairness and I can find no evidence to support that submission. [17] It is true that Mr Choy gave evidence about cleaning a fan20 and Mr LaFave told Mr Choy there were no ceiling fans in the house.21 Mr LaFave did not put that proposition to Mr Choy. The learned Magistrate asked Mr LaFave if he wanted to ask Mr Choy questions and Mr LaFave said ‘No. No. I don’t need to coach him either’22. When the learned Magistrate was giving his reasons for decision, accepting Mr Choy’s evidence, Ms Christiansen interjected, disputing the truth of that evidence.23 The learned Magistrate pointed out24 that the tenants could have tested Mr Choy’s evidence but they did not do so. [18] The learned Magistrate had two conflicting pieces of evidence. He preferred Mr Choy’s evidence. My sole duty is to determine whether there is an error in the primary decision. It is not my task to decide where the truth lay as between the competing versions given by the parties.25 I am not persuaded that the learned Magistrate was in error. [19] The tenants submit that the learned Magistrate took into account issues that should have been disallowed. They say that he considered claims that were not part of the original list of problems with the tenancy. [20] The tenants made the same point at the hearing. The learned Magistrate told them that Ms Westbrook didn’t have to list all items on the original list26. That is correct. The submission the tenants now make – why was it an issue later but not before the parties were in dispute – goes to the weight given to the evidence, not the fact that the claim can be made. The tenants submit that Ms Westbrook added to the claim because she was annoyed with the tenants. The learned Magistrate was not concerned with motive. He had to decide whether or not there was animal hair which required extra cleaning. [21] The tenants separately submit that the learned Magistrate preferred Ms Westbrook’s evidence over their evidence. I have already dealt with this submission. The evidence can support the learned Magistrate’s findings and, even though reasonable minds may differ about those conclusions, I can find no compelling reason to come to a different view. 20 Transcript page 1-9, lines 11 – 12. 21 Ibid lines 45 – 46. 22 Ibid line 12. 23 Transcript page 1-13, lines 15 – 19. 24 Ibid lines 21 – 28. 25 Fox v Percy (2003) 214 CLR 118 at 129 per Gleeson CJ, Gummow and Kirby JJ. 26 Transcript page 1-11. -- 5 of 7 -- 6 [22] For the same reason, I do not accept the tenants’ submission that the learned Magistrate made a finding contrary to the evidence or on proven false statements or that the decision was contradictory. [23] The tenants take issue with the learned Magistrate’s comment27 that a $900 charge for mowing alone did not accord with his own experience or common sense. They say that the learned Magistrate’s experience did not include sourcing services in Gladstone at the height of the mining boom. [24] Judicial officers can base their decisions on “judicial experience”. Usually, the use of judicial experience or “judicial notice” is against “facts that are notorious”28. The cases they hear and determine will, inevitably, form a background against which they test evidence. [25] I am not sure that the cost of lawn mowing in Gladstone or Calliope is a fact that is notorious. The learned Magistrate did not give details of his experience which would validate his comment. The tenants did not provide any evidence to show that the learned Magistrate had no knowledge of conditions in Gladstone in 2012. It may be that the learned Magistrate regularly sat in civil claims in Gladstone. However, the point is moot. There was other evidence before the learned Magistrate on which he could decide that Ms Westbrook paid $900 for lawn mowing and cleaning. I am not persuaded that this is a valid ground for granting leave to appeal. [26] I do not accept the tenants’ submission that the learned Magistrate made a decision based on his own personal opinion. As I have already found, he considered the evidence, preferred Ms Westbrook’s evidence over the tenants’ evidence, and gave his decision on that basis. [27] The tenants submit that the learned Magistrate should have granted an adjournment of the hearing to determine whether he should grant a reopening of the hearing. They also say that he unfairly denied them a right to reopen the hearing. [28] The tribunal’s decision on a reopening application is final and no appeal will lie from that decision29. [29] A party can appeal a refusal to allow an adjournment but it is clear that no adjournment was possible. The hearing was concluded, the learned Magistrate had given his decision. There was no proceeding left to adjourn. 27 Transcript page 1-14, lines 6 – 7. 28 Gerhardy v Brown (1985) 159 CLR 70 per Gibbs CJ at 87 – 88. 29 QCAT Act s 139(5). -- 6 of 7 -- 7 [30] Finally, the tenants allege bias. Bias is a very serious allegation. The test is30: … if a fair-minded lay bystander might reasonably apprehend that the decision-maker might not bring an impartial mind to the determination of the issues that he or she must decide. [31] It is simply not enough proof of bias to say that the learned Magistrate found against a party. The tenants’ detailed submissions about bias simply reiterate the specific submissions to support leave to appeal. I can find no evidence of bias. [32] There is no reasonably arguable case that the learned Magistrate was in error. Leave to appeal should be refused. 30 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. -- 7 of 7 --