Craik v Otter [2014] QCATA 57

CITATION: Craik v Otter [2014] QCATA 57 PARTIES: Carol Craik (Appellant) v Tarmia Otter (Respondent) APPLICATION NUMBER: APL524 -13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe, OAM DELIVERED ON: 31 March 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused CATCHWORDS: APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY DISPUTE – where tenant claimed she had not seen documents – where documents posted to tenant prior to hearing – whether tenant received the documents - where documents not given to tenant at hearing – whether failure to provide natural justice - whether grounds for leave to appeal Acts Interpretation Act 1954 (Qld) s 39A(1)(b) 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] Ms Craik rented a room from Ms Otter. The tribunal terminated the tenancy agreement on 30 August 2013 because of Ms Craik’s objectionable behaviour. Ms Craik filed an application for return of her -- 1 of 3 -- 2 bond on 8 October 2013. Ms Otter filed a counter application on 23 October 2013. On 29 October 2013, an Adjudicator ordered that Ms Otter receive most of the bond to compensate her for unpaid rent and damage Ms Craik caused to the premises. [2] Ms Craik wants to appeal that decision. She says she was denied natural justice because she was not allowed to see any evidence of Ms Otter’s counterclaim. [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] It is true that Ms Craik told the learned Adjudicator that she had not seen any of the documents Ms Otter filed in support of her counter application2. However, Ms Craik knew that Ms Otter had a claim against her for damages. She referred to that fact twice in her application and she must have known that this would be a matter discussed at the hearing. [5] The file also shows that Ms Otter filed supporting documents with her counter application and that the tribunal sent Ms Craik a copy of the counter application by letter dated 25 October 2013. [6] Service is taken to have occurred when the letter would be delivered in the ordinary course of the post, unless the contrary is proved3. Ms Craik’s address for service was a Post Office box. She should have received the letter on 27 October 2013. She told the learned Adjudicator that she had not seen the documents but she did not tell him whether she checked the Post Office box and it was not there or whether she simply did not check the Post Office box. [7] The learned Adjudicator rejected Ms Otter’s claims for damage to property even though Ms Craik, in fact, admitted that the damage was caused by “people [she] was sharing with”. Therefore, Ms Craik did not need to concern herself with Ms Otter’s photos of damage to the premises. [8] As the learned Adjudicator pointed out a number of times4, there were only two relevant documents: the warrant of possession and a rent receipt. Ms Craik did not, and could not, deny the existence of the warrant. 1 [2005] QCA 294 at [3]. 2 Transcript page 1-4, lines 34-36; page 1-12, line 34 ; page 1-14, line 7 ; page 1-17, lines 12-13. 3 Acts Interpretation Act 1954 (Qld) s 39A(1)(b). 4 Transcript page 1-13, lines 41-45 ; page 1-16 lines 12-22 ; page 1-18 lines 25-27. -- 2 of 3 -- 3 [9] The learned Adjudicator found that it was reasonable for Ms Otter to change the locks once a warrant was executed. The evidence can support the learned Adjudicator’s decision and I can find no compelling reason to come to a different view. [10] The learned Adjudicator also relied on Ms Otter’s rent receipt and her oral evidence that Ms Craik owed a week’s rent. The learned Adjudicator invited Ms Craik to show him evidence that she had paid the rent5 but she did not produce any. Again, the evidence can support that view and I can find no compelling reason to come to a different view. [11] I am satisfied that, in these unique circumstances, Ms Craik was not denied natural justice because she did not see the documents Ms Otter produced. [12] Even if the learned Adjudicator was in error, and I found that he was not, there is no substantial injustice to Ms Craik. She should pay the cost of changing the locks. She did not have to pay for damage to the premises. She was charged a modest one week’s rent. Leave to appeal should be refused. 5 Transcript page 1-9, line 44. -- 3 of 3 --