Falzon v Talty [2014] QCATA 32

CITATION: Falzon v Talty [2014] QCATA 032 PARTIES: Mario Falzon (Appellant) v Elethea Ann Talty (Respondent) APPLICATION NUMBER: APL467-13 MATTER TYPE: Appeals HEARING DATE: 21 February 2014 HEARD AT: Brisbane DECISION OF: Dr Forbes, Member DELIVERED ON: 7 March 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. On the issue of liability for damage to property the application for leave to appeal is dismissed. 2. On the issue of the respondent Elethea Ann Talty’s expenses ($83), leave to appeal is granted, and the appeal is allowed. 3. So much of the Tribunal’s decision as relates to those expenses is set aside. 4. The orders of the Tribunal are varied to provide as follows: (a) The Residential Tenancies Authority shall pay to the respondent Elethea Ann Talty her rental bond of $333.26. (b) The applicant Mario Falzon shall pay to the respondent the sum of $64.74 within 7 days. 5. No order as to costs. CATCHWORDS: APPEALS – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY DISPUTE – damage to property on leased premises – whether -- 1 of 6 -- 2 liability to repair that of landlord or tenant – counterclaim for rent overpaid and expenses – whether decision that damage is fair wear and tear is in error – whether appellable error shown – whether leave to appeal on that issue should be granted – whether award of expenses to successful party made in error – whether appellable error on expenses issue shown – whether s 102 of the QCAT Act satisfied – whether, if s 102 satisfied, the expenses awarded are properly recoverable – whether leave to appeal on expenses issue should be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 20, s 32, s 43, s 48, s 100, s 102 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), s 83 Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 188 Drew v Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359, cited Felton & Anor v Raine and Horne Real Estate [2011] QCATA 330, cited Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited Goninan & Co Pty Ltd v Direct Engineering Services Pty Ltd (2007) 33 WAR 182; [2007] WASCA 10, cited Griffin v Gini [2011] QCATA 325, cited Hawkins v Pender Bros Pty Ltd [1990] 1 Qd R 135, cited In re W (an infant) [1971] AC 682, cited International Professional Services v Tritone Nominees Pty Ltd [2011] QCATA 332, cited Jong v Beevers Real Estate [2013] QCAT 90, cited Matthews v Body Corporate CTS 10524 [2012] QCATA 82 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611; [2010] HCA 16, cited Orr v Holmes (1948) 76 CLR 632; [1948] HCA 16, cited QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257, cited Robinson v Corr [2011] QCATA 302, cited Secretary of State for Education and Science v -- 2 of 6 -- 3 Tameside Metropolitan Borough Council [1977] AC 1014, cited Taylor v Webb [1937] 2 KB 283, cited Walton v New Lakelands Pty Ltd [2013] QCATA 49 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] In October 2011 Elethea Ann Talty (“the Tenant”) rented a property at Lowood owned by Mario Falzon (“the Landlord”). In July 2012 the Tenant says that she was “wiping down”1 a stove top in the premises when a shard of glass on a burner broke away. [2] She immediately telephoned the Landlord’s agent and reported the mishap. Several further calls produced no result; the fault was not repaired until after the lease ended.2 The fact that the premises are in Lowood, while the Landlord’s agent was on the Gold Coast,3 may have hampered effective communications. [3] The Landlord commenced these proceedings on 1 July 2013, claiming at total of $684.25.4 [4] The Tenant counterclaimed for return of her rental bond, $64.74 for rent overpaid, and $83 for “parking fees and travel costs”. The damaged stove – Landlord’s or Tenant’s responsibility? [5] On 10 October 2013 the Tribunal dismissed the Landlord’s claim (holding that the incident was probably fair wear and tear5), allowed the counterclaim, directed a return of the Tenant’s bond, and ordered the Landlord to pay her the sum of $174.74.6 [6] The Landlord now seeks leave to appeal against the dismissal of his claim, and the award to the Tenant of $83 for expenses. (It is admitted that she is entitled to $64.74 for rent overpaid.7) The Landlord “feels” that the Tribunal “lost control of the hearing and clearly took sides and empathised with the [Tenant]”. It is also submitted that the Tribunal erred in allowing the Tenant’s application for expenses.8 [7] The Landlord seeks to introduce evidence of “over 500 similar glass stove tops under management, over a period greater than 8 years” that have not 1 Transcript of hearing, 10 October 2013 (“Transcript”) page 8 (Talty). 2 Transcript page 12 (Talty). 3 Transcript pages 11 (Talty). 4 Repairs to stove $489.25; filing fee $55; court attendance $110; parking fee $30. 5 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 188(4). 6 Rent overpaid $64.74; $83 for expenses of attendance at hearing. 7 Transcript page 16 line 13 (Starr, agent for Landlord). 8 Submissions of Landlord 2 December 2013. -- 3 of 6 -- 4 disintegrated as alleged by the Tenant, and of other tenants “who have owned up to accidentally dropping or banging something... against the appliance”. The introduction of additional evidence at the appeal stage is not a routine procedure. If it were, litigation might be intolerably protracted, against the policy of the courts, and particularly of this Tribunal.9 In exercising a discretion to allow additional evidence on appeal it is appropriate to ask, inter alia: was this material reasonably available at the time of the trial? If so, why was it not adduced at that time?10 Would it be fair to the opponent to compel her to revisit a case that she believes is over and done with? The Landlord offers no satisfactory answer to these questions. The evidence in question is disallowed. [8] In a document accompanying the leave application, the Landlord’s agent writes: Having read the [Tenant’s] written submission, I feel that it was prepared if not assisted by a member of the legal fraternity. The [Landlord] could only rely on my humble abilities as a Real Estate Agent... not versed in legalese ... the [Landlord] has been somewhat disadvantaged.11 [9] If that complaint is intended to suggest a breach of the Tribunal’s self- representation rule,12 it is misconceived. Outside a hearing, a party is quite entitled to seek legal assistance without seeking leave to do so. The Landlord was free to do so; a simple enquiry at the registry would have provided that assurance. The Tribunal “lost control and took sides” [10] No particulars of the alleged loss of control or apprehended bias are given. That fact, in itself, might be seen as a sufficient reason for rejecting these vague complaints. Such pejorative allegations call for particulars.13 However, a careful reading of the transcript reveals nothing to warrant them. Each party was treated courteously. The principal focus of the inquiry was, quite properly, upon the damage to the stove. When the Tenant introduced an irrelevancy (regarding an air conditioner) the Tribunal promptly returned her to the issues.14 There is nothing to suggest that she was treated indulgently – unless the fact that she succeeded is misconstrued to reach that conclusion. The Landlord’s representative (Mr Starr) was given every opportunity to present his principal’s case, and on at least two occasions was invited to make further submissions, if he so desired. When it was reasonably pointed out that “you left it for three months without doing anything about it”, he replied, just as reasonably “I see your point. Definitely”.15 9 QCAT Act ss 3(b), 4(b) and (c). 10 Hawkins v Pender Bros Pty Ltd [1990] 1 Qd R 135; Orr v Holmes (1948) 76 CLR 632 at 640-641; Goninan & Co Pty Ltd v Direct Engineering Services Pty Ltd (2007) 33 WAR 182; Walton v New Lakelands Pty Ltd [2013] QCATA 49 at [5]. 11 Letter: J Starr to QCAT registry 17 December 2013. 12 QCAT Act s 43. 13 Matthews v Body Corporate CTS 10524 [2012] QCATA 82 at [7]. 14 Transcript page 8 (O’Donnell JP). 15 Transcript page 11 line 27 (Starr). -- 4 of 6 -- 5 [11] The cause of the damage was a question of fact and credit for the Tribunal to decide. In the event, it decided that the Landlord had not shown, on the evidence and the balance of probabilities, that the Tenant was responsible for the damage.16 Implicitly it was held to be fair wear and tear.17 On this issue the Landlord bore the onus of proof. The only direct evidence was that of the Tenant, and as the Landlord’s representative conceded, “it’s very difficult to quantify [sic] how it happened”18. It was for the Tribunal to assess the Tenant’s credit. The fact that a party loses the case and disagrees with the result does not mean that an error of law has occurred. There is no reasonably appellable error in the findings of fact and credit relating to the damaged stove. It was essentially a decision for the primary Tribunal, and it is not the function of this appeals tribunal to “second guess” that ruling on an application for leave to appeal. Applications for leave to appeal - proper limits [12] An application for leave to appeal is not an occasion for a retrial de novo, or for “second guessing” of questions of fact or credit that are the province of the primary decision-maker. Indeed, the very requirement to obtain leave is to preclude attempts to retry cases on the merits,19 or to introduce evidence or arguments that might have been led in the first place, but were not. On such an application the question is whether there is a reasonably arguable case of error which, if not corrected, will cause substantial injustice to the applicant.20 It is not nearly enough for an applicant to express disappointment, or to entertain a subjective feeling that justice has not been done.21 It is not an appellable error to prefer one version of the facts to another, or to give less weight to one party’s case than he or she thinks it should receive. Findings of fact will not normally be disturbed if they have rational support in the evidence, even if another reasonable view is available.22 Where reasonable minds may differ, a decision cannot properly be called erroneous, simply because one conclusion has been preferred to another possible view.23 The Tenant’s Expenses 16 Ibid page 18lines 20-21. 17 Taylor v Webb [1937] 2 KB 283 at 302; Jong v Beevers Real Estate [2013] QCAT 90 at [8]; Griffin v Gini [2011] QCATA 325 at [12]. 18 Transcript page 10 lines 42-43. 19 Distinguish QCAT Act s 20 (review jurisdiction). 20 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257 at [6]; Drew v Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359 at [18]; Felton and Anor v Raine and Horne Real Estate [2011] QCATA 330 at [19]; International Professional Services v Tritone Nominees Pty Ltd [2011] QCATA 332. 21 Robinson v Corr [2011] QCATA 302 at [7]. 22 Fox v Percy (2003) 214 CLR 118 at 125-126. 23 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at [131]; In Re W (an infant) [1971] AC 682 at 700 per Lord Hailsham; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025. -- 5 of 6 -- 6 [13] Was the Tribunal entitled to award the Tenant $83 for “parking fees and travel costs”,24 or what the Tribunal simply described as “expenses”.25 The Tenant makes no claim for filing fees, and has no professional costs. [14] The statutory presumption is that parties must bear their own costs.26 There is no contrary provision in the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). These proceedings are characterised as a Minor Civil Dispute – Residential Tenancy Dispute. Before an order for costs may be made in such a case the party seeking costs must negotiate two hurdles. First, it must appear that the unsuccessful party conducted the proceedings in a manner described in section 102 of the QCAT Act. In this case the most pertinent provision is section 102(3)(a),27 as enlivened by section 48(1)(a) to (g). The Tenant has not shown that any of those provisions apply, and on this aspect of the case, she bears the onus of proof. Further, even if it were shown that a costs order is warranted, it would be limited, in a case of this kind, to the items permitted by the rules.28 In the case of a minor civil claim (not being a minor debt claim) the only costs that may be awarded are the filing fee paid by the applicant.29 Now while the Tenant is the applicant upon the counterclaim, there is no evidence that she incurred such a fee. [15] It follows that the Tribunal was in error in awarding the Tenant $83 for “expenses”. To that extent only, leave should be granted, the appeal allowed, and the decision set aside in part. There will be orders accordingly. ORDERS 1. On the issue of liability for damage to property the application for leave to appeal is dismissed. 2. On the issue of the respondent Elethea Ann Talty’s expenses ($83) leave to appeal is granted, and the appeal is allowed. 3. So much of the Tribunal’s decision as relates to those expenses is set aside. 4. The orders of the Tribunal are varied to provide as follows: a. The Residential Tenancies Authority shall pay to the respondent Elethea Ann Talty her rental bond of $333.26. b. The applicant Mario Falzon shall pay to the respondent the sum of $64.74 within 7 days. 5. No order as to costs. 24 Ibid page 10 line 24 (Talty). 25 Ibid page 18 line 25 (decision). 26 QCAT Act, s 100. 27 Causing unnecessary disadvantage. 28 QCAT Act, s 102(2). 29 Queensland Civil and Administrative Tribunal Rules 2009 s 83. -- 6 of 6 --