Department of Transport and Main Roads v Hollidge & anor [2014] QCATA 55

CITATION: Department of Transport and Main Roads v Hollidge & anor [2014] QCATA 55 PARTIES: Department of Transport and Main Roads (Appellant) v Donovan Roy Hollidge Shona Kristie Sonter-Moore (Respondents) APPLICATION NUMBER: APL500 -13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe, OAM DELIVERED ON: 1 April 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 29 October 2013 is set aside. 4. The application for compensation by Donovan Roy Hollidge and Shona Kristie Sonter-Moore is dismissed. 5. Donovan Roy Hollidge and Shona Kristie Sonter-Moore will pay the Department of Transport and Main Roads $220 ($150 cleaning and $70 yard maintenance) within 21 days of the date of this order. CATCHWORDS: APPEAL – LEAVE TO APPEAL – RESIDENTIAL TENANCY DISPUTE – where counterclaim for damage – where tribunal did not accept copies of invoices to support counterclaim at hearing - whether tribunal should have accepted invoices – where claim for compensation – where claim for compensation more than 6 months before dispute resolution notice – where claim for rent reduction – whether substantial reduction in amenity – whether grounds for leave to appeal -- 1 of 4 -- 2 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 94, 419(3) 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). REASONS FOR DECISION [1] Mr Hollidge and Ms Sonter-Moore rented a house from the Department of Transport and Main Roads. The tenants filed an application for compensation and rent reduction, claiming that the house was dirty and badly maintained. The Department had a counterclaim for carpet cleaning and yard maintenance. Two Justices of the Peace, sitting in the minor civil disputes jurisdiction, ordered the Department pay the tenants $1,720 compensation. [2] The Department wants to appeal that decision. It says the learned Justices of the Peace erred in stating that the Department did not provide evidence of work done. It says it did have invoices to support its claim but the learned Justices of the Peace refused to accept them. It says the learned Justices of the Peace had no basis for giving compensation of $1,500 for the carpet. Alternatively, it says the learned Justices of the Peace erred in giving the tenants $1,500 compensation when their claim was only $400. [3] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as His Honour then was) in Pickering v McArthur1: There are numerous authorities, in varying language but with unvarying emphasis, that 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. [4] The Department had only two claims; $70 for yard work and $150 for carpet cleaning. The Department, through Ms Harbort, indicated that it was trying to find the invoices that supported those claims2. The Department provided an invoice for a professional clean before the tenants took possession3 but that invoice does not relate to the 1 [2005] QCA 294 at [3]. 2 Transcript page 1-17, lines 43-44. 3 Transcript page 1-32, lines 11-20. -- 2 of 4 -- 3 Department’s claim. There is a reference to a carpet cleaning invoice4, and it appears that one of the learned Justices of the Peace looked at it, but there is no copy of that invoice on the file. There is also a reference to the “cleaning receipt”5 but, again, there is no copy on file. [5] The evidence supports the Department’s submission that it did have copies of invoices to hand up to the learned Justices but those invoices were not accepted. [6] The explanation for the learned Justices’ refusal to accept the invoices appears in their reasons for decision6. The learned Justices took the view that the Department’s claim, and supporting paperwork, should have been filed well before the hearing. That might be good practice but, as Ms Harbort pointed out, this was a claim by the tenant and there is no tribunal rule or direction requiring the respondent Department to file documents ahead of time. [7] If the tribunal is able to accept evidence at the hearing and still observe the rules of natural justice, it should do so. The fact that the Department could not provide other evidence about the repairs conducted during the tenancy does not mean that the learned Justices should have rejected evidence on matters that were central to the issues before them. The learned Justices erred in not accepting the proffered invoices. [8] The Department is correct in its assertion that the tenants’ claim for a rent reduction was limited to $400. The learned Justices could not unilaterally decide that the tenants should be given a rent reduction of $1,500 without giving the Department an opportunity to make submissions about that. There was a claim for damages well in excess of $1,500 but those claims were out of time7. [9] The claim of $400 is a claim for a reduction of $100 per week for the four weeks between a complaint about the odour of the carpet and the carpet being replaced. The Department says that the learned Justices erred in not acknowledging that it took all reasonable steps to have the carpet replaced. The evidence can support that proposition and the learned Justices erred in not considering that in their decision. [10] A tenant can apply for a reduction in rent if the amenity of standard of the premises decreases substantially8. The transcript shows that the odour problem was present from the start of the tenancy9. Therefore, there was no reduction in the amenity of the house and the learned Justices should not have given the tenants a rent reduction. [11] The learned Justices were in error. Leave to appeal should be granted and the appeal allowed. The decision of 29 October 2013 is set aside. The 4 Transcript page 1-32, line 3. 5 Transcript page 1-32, line 9, 16. 6 Transcript page 1-33, lines 6-27. 7 They were made more than 6 months after the tenants became aware of the breach, see s 419(3) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). 8 Section 94(2)(b) Residential Tenancies and Rooming Accommodation Act 2008 (Qld). 9 Transcript page 1-4, lines 33-34. -- 3 of 4 -- 4 tenants’ application for compensation is dismissed. The tenants will pay the Department of Transport and Main Roads $220 ($150 cleaning and $70 yard maintenance) within 21 days of the date of this order. -- 4 of 4 --