A & A Realty v Humphreys & Anor [2014] QCATA 332

CITATION: A & A Realty v Humphreys & Anor [2014] QCATA 332 PARTIES: A & A Realty (Applicant/Appellant) v Kevin Humphreys Mika Humphreys (Respondents) APPLICATION NUMBER: APL411-14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM DELIVERED ON: 1 December 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 12 September 2014 is set aside. 4. A & A Realty shall pay Kevin and Mika Humphreys $458.00 by [28 days]. 5. If A & A Realty has complied with the decision of 12 September 2014, Kevin and Mika Humphreys shall pay A & A Realty $290.90 by [28 days]. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where tenant gave notice to leave – where tenant asked agent to arrange exit clean – where agent prepared exit condition report – where tenant challenged cost of exit clean – where tenant challenged additional rent for period in which exit clean conducted – whether grounds for leave to appeal Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 66(1) Dearman v Dearman (1908) 7 CLR 549 -- 1 of 4 -- 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] Mr and Ms Humphreys rented a house in Innisfail through A & A Realty. Two weeks before the end of the tenancy they gave notice that they would be vacating the house. At the same time, the Humphreys asked A & A ‘in the interests of fairness, can you organise a bond clean after we leave’. [2] Mr and Ms Humphreys returned the keys on 19 June 2014. The tenancy ended on 20 June 2014. A & A arranged for an inspection on 21 June 2014. The bond clean started on 23 June 2014 and finished on 27 June 2014. [3] Mr and Ms Humphreys filed an application for return of $758.90 from the bond. Two Justices of the Peace, sitting as the tribunal in its minor civil disputes jurisdiction, ordered A & A pay the Humphreys $748.90. [4] A & A want to appeal the learned Justices’ decision. It says that Mr and Ms Humphreys had an opportunity to challenge the bond payout and they failed to do so. It says, by implication although not explicitly, that the learned Justices erred in their decision. [5] A & A has filed fresh evidence with its application for leave to appeal. It filed copies of emails between the agency and Mr Humphreys which show the tenants were ‘difficult’. [6] 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 A & A have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?1 [7] A & A had this information on its file prior to the hearing before the learned Justices. It does not explain why the information was not provided to the learned Justices. Whether Mr and Ms Humphreys were difficult tenants is not an important question for the tribunal’s determination. While it might explain some of A & A’s actions in finalising this tenancy, it does not factor 1 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408. -- 2 of 4 -- 3 in the timing of the cleaning, the cost of the cleaning, or who should be responsible for rent and cleaning after the Humphreys left. The application for leave to appeal should be determined without reference to the fresh material. [8] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.2 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.3 [9] The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.4 An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.5 [10] It is curious that Mr Humphreys, a former professional real estate agent himself6, relied upon his own failure to comply with the tenancy agreement and the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) to justify relief from payment of rent and a cleaning fee. He delegated the preparation of the exit condition report7 and the cleaning8 to A & A. The learned Justices acknowledged this unusual situation9. [11] A & A obtained two quotes for the cleaning. One was $565.00, the other was $676.50. The learned Justices found that the Humphreys were not entitled to receive a quote for the cleaning work. I agree with the learned Justices’ decision on that point. I also agree that A & A’s email, noting that it was obtaining quotes, was not an offer to pass those quotes on to the Humphreys for approval. [12] Logically, A & A accepted the lower quote. The learned Justices discounted that price because, in their view, it was unreasonable10. The exit condition report noted the cleaning required. There were two quotes, both substantial, which addressed the cleaning requirements. A & A chose the lower quote. The learned Justices rightly rejected Mr Humphreys’ argument that the house was not clean when he took possession because there was no evidence of that before them11. The learned Justices imposed their own view without any evidence to support that view. Because the learned Justices’ decision cannot be supported by the evidence, leave to appeal should be granted and, to the extent their decision relates to the cleaning, the appeal should be allowed. 2 QCAT Act s 142(3)(a)(i). 3 Pickering v McArthur [2005] QCA 294 at [3]. 4 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125 – 126. 5 Chambers v Jobling (1986) 7 NSWLR 1 at 10. 6 Submissions received 7 November 2014, paragraph [2]. 7 RTRA Act s 66(1). 8 Tenancy agreement special conditions clause 10. 9 Transcript page 1-23, lines 1 – 34. 10 Transcript page 1-28, lines 24 – 29. 11 Transcript page 1-28, lines 29 – 35. -- 3 of 4 -- 4 [13] The learned Justices’ decision about the rent is more problematic. A & A did delay in organising the cleaning but, as I have observed, the obligation sat with the Humphreys. The learned Justices rightly observed12 that the lessor, through A & A, had an obligation to mitigate its loss. They also observed13 that A & A had two weeks’ notice of the Humphreys’ intention to leave. On balance, I am not persuaded that the learned Justices fell into error in refusing to allow A & A rent for the time that cleaning was in progress. [14] Leave to appeal should be granted and the appeal allowed. The decision of 12 September 2014 is set aside. A & A shall pay Mr and Ms Humphreys $458.00 – one week’s rent plus the filing fee – by [28 days]. If A & A Realty has complied with the decision of 12 September 2014, Mr and Ms Humphreys shall pay A & A Realty $290.90 by [28 days]. 12 Transcript page 1-15, lines 3 – 17. 13 Transcript page 1-15, lines 33 – 39. -- 4 of 4 --