Cleak v Hirt [2013] QCATA 321

CITATION: Cleak v Hirt [2013] QCATA 321 PARTIES: Lincoln Cleak (Appellant) v Kathja Hirt (Respondent) APPLICATION NUMBER: APL220 -13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judge Alexander Horneman-Wren SC, Deputy President DELIVERED ON: 7 November 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal is refused. CATCHWORDS: APPEAL – MINOR CIVIL DISPUTE – where the tenant had trees lopped – where the landlord withheld the bond – where the landlord claimed compensation for damage to trees – where the Tribunal ordered the bond be released – whether leave to appeal should be granted Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 65 Cachia v Grech [2009] NSWCA 232 , cited Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, cited McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, cited QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41, cited -- 1 of 3 -- 2 APPEARANCES and REPRESENTATION (if any): The Appeal Tribunal heard and determined this matter on the papers in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009. REASONS FOR DECISION [1] While she was a tenant in Mr Cleak’s property, Ms Hirt arranged for two trees, a mulberry and a macadamia, to be “trimmed”. At the end of the tenancy, Ms Hirt wanted her bond returned. [2] Mr Cleak arranged an inspection of the property and was “completely shocked” by the damage to the trees. He felt that the value of his property had decreased. He received a report from an arborist that suggested the trees had been butchered. He received a quote for $550 to remove the mulberry tree stump. His arborist estimated a cost of about $1,000 to restore the macadamia tree. Mr Cleak wanted to retain the bond so that he could address the damaged trees. A Magistrate, sitting as an ordinary member of the Tribunal, ordered that the bond be released in full to Ms Hirt. [3] Mr Cleak wants to appeal that decision. He says that Ms Hirt misled the Tribunal. He repeats the facts that were before the learned Magistrate. He says that Ms Hirt had the onus of showing that he gave permission for the tree to be lopped and that she did not discharge that onus. [4] Because this is an appeal from a decision of the Tribunal in its Minor Civil Disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?1 Is there a reasonable prospect that the applicant will obtain substantive relief?2 Is leave necessary to correct a substantial injustice caused by some error?3 Is there a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage?4 [5] The learned Magistrate’s reasons for decision were brief, but this is understandable. Mr Cleak did not appear at the hearing and there was significant material from Ms Hirt. Mr Cleak had written to the Tribunal explaining that he would be in New Zealand on the day of the hearing and would not be contactable by telephone. His letter and some attachments were, effectively, his material in the proceeding. It is, therefore, appropriate to explore Mr Cleak’s submissions in a little more detail than is normal in the Appeal Tribunal. 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 2 Cachia v Grech [2009] NSWCA 232 at 2. 3 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 4 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580. -- 2 of 3 -- 3 [6] The Tribunal has no ability to consider a claim for compensation unless it was made within 6 months after the lessor became aware of the breach.5 On 3 March 2012, Mr Cleak sent Ms Hirt an email which said, in part: Under no circumstances did I agree to tree lopping [7] To the extent that Ms Hirt may have breached the tenancy agreement by lopping the trees, Mr Cleak became aware of the breach from, at least, that date. He had to make a claim for compensation by September 2012. He did not. [8] Mr Cleak might argue that he did not know the true extent of the damage until Ms Hirt’s tenancy ended. By his own admission, Mr Cleak was an absentee landlord. [9] He did not organise an inspection of the property before Ms Hirt moved in. He sent a text to Ms Hirt’s flatmate:6 As I can’t vouch for the property condition, if you feel anything needs doing ie carpet cleaning, general cleaning etc please organise and I will deduct from rent. [10] He asked Ms Hirt’s flatmate to sign up without an internal inspection.7 As the learned Magistrate observed,8 Mr Cleak received an entry condition report by email on 28 February 2012 that referred to the condition of the garden. Mr Cleak had the obligation to provide an entry condition report, not Ms Hirt.9 [11] Ms Hirt’s flatmate moved out and, in July 2012, Mr Cleak signed a new lease with Ms Hirt. There is no evidence that he inspected the property before he signed that tenancy agreement. Once again, there is no evidence that Mr Cleak provided an entry condition report. [12] Mr Cleak was obliged to inspect the property and provide an entry condition report on two occasions. He did not. As he was concerned about the tree lopping, he could have arranged an inspection around the time he received the invoice. He did not. Mr Cleak cannot rely on his own inaction as a reason to extend the time for claiming compensation to the date on which he realised the full extent of the tree lopping. [13] The learned Magistrate’s decision was correct. There is no question of general importance that should be determined by the Appeal Tribunal. There is no reasonably arguable case that the learned Magistrate was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused. 5 Residential Tenancies and Rooming Accommodation Act 2008, s 419. 6 Text message on 27 January 2012. 7 Mail dated 4 March 2012. 8 Transcript page 1-4, line 15. 9 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 65. -- 3 of 3 --