Arian v Parlato & Anor [2014] QCATA 195

CITATION: Arian v Parlato & Anor [2014] QCATA 195 PARTIES: Younes Arian (Applicant/Appellant) v Eric Parlato Melinda Stace (Respondents) APPLICATION NUMBER: APL020-14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Thomas, President DELIVERED ON: 25 July 2014 DELIVERED AT: Brisbane ORDER MADE: The application for leave to appeal is refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where claim for repairs and maintenance – where entry condition report completed by lessor and incorrect – where no exit condition report completed – where lessor did not advise tenants of issues and give opportunity to repair – where lessor did not have access to his photographs at the hearing – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 142(3)(a)(i) Chambers v Jobling (1986) 7 NSWLR 1, cited Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, applied Dearman v Dearman (1908) 7 CLR 549, applied Fox v Percy (2003) 214 CLR 118, applied Pickering v McArthur [2005] QCA 294, applied -- 1 of 3 -- 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] Mr Arian rented premises to Mr Parlato and Ms Stace. Mr Parlato and Ms Stace lived upstairs and Mr Arian lived downstairs. Mr Arian drafted the tenancy agreement, which contains some unusual provisions. The tenants fell behind in their rent; relations between the parties soured to the point that the police were involved at the end of the tenancy. Mr Parlato told the tribunal that Police officers advised him not to return to the tenancy to complete the cleaning. [2] Mr Arian filed a claim in the tribunal for rent arrears, cleaning, gardening and damage to the premises. A Magistrate, sitting as a member of the tribunal in its minor civil disputes jurisdiction, dismissed Mr Arian’s claims for cleaning, gardening and damage. The tenants agreed they owed $485.71 rent. Against this, the learned Magistrate credited $270.29 that Mr Arian owed the tenants for electricity. She ordered Mr Arian receive $215.42 (the balance of rent after crediting the electricity charges) with the balance of the bond paid to the tenants. [3] Mr Arian wants to appeal that decision. He says that, although the learned Magistrate and the tenants had copies of photographs he had provided, that showed damage to the tenancy, he did not keep a copy of those himself. This, he says, prevented him from presenting his case properly to the learned Magistrate. He wants the opportunity to present this material to the tribunal afresh. [4] Mr Arian has also filed two extra photos with his application for leave to appeal. The appeal tribunal will only accept additional evidence if it was not reasonably available at the time the proceeding was heard and determined. Where a party seeks to rely on such evidence, the party must satisfy three tests: with reasonable diligence, could the evidence have been obtained 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 [5] Mr Arian has not explained why these photos weren’t available at the hearing. One of them is nearly identical to another that was before the learned Magistrate. Neither would have an important impact on the result of the case and should not be admitted. [6] 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 1 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408. 2 QCAT Act s 142(3)(a)(i). -- 2 of 3 -- 3 attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.3. [7] The learned Magistrate did not dismiss Mr Arian’s claim for damage and cleaning because he could not explain the damage by reference to the photos. She dismissed his claim because: a) Mr Arian did not give the tenants a proper opportunity to complete the entry condition report, which did not accurately represent the condition of the premises at the start of the tenancy.4 b) There was no exit condition report, the tenants had no opportunity to complete an exit condition report. c) Mr Arian did not do the tenants the courtesy of notifying them of the unsatisfactory items and giving them an opportunity to make repairs.5 [8] The learned Magistrate did not accept Mr Arian’s claim for gardening costs because the tenancy agreement did not make it clear in what proportion the parties were to share those costs.6 Mr Arian could not prove the garden was in a good condition when the tenants took possession.7 He claimed for items that, in the learned Magistrate’s view, were not usual maintenance work for which a tenant should be responsible.8 [9] The appeal tribunal will not usually disturb findings of fact on appeal if it considers the conclusions of the decision maker below were able to be made on the evidence before them,9 however may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.10 The evidence can support the findings made by the learned Magistrate. There is nothing in the transcript or in the evidence that was before them, to persuade me that the learned Magistrate should have taken a different view of the facts. [10] There is no reasonably arguable case of error and, accordingly, leave to appeal should be refused. 3 Pickering v McArthur [2005] QCA 294 at [3] per Keane JA. 4 Transcript page 1-35, lines 31-39. 5 Transcript page 1-36, lines 17-28. 6 Transcript page 1-36, lines 36-37. 7 Transcript page 1-36, line 45 to page 1-37, line 1. 8 Transcript page 1-37, lines 1-6. 9 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. 10 Chambers v Jobling (1986) 7 NSWLR 1 at 10. -- 3 of 3 --