DTK Logging v Milne [2013] QCATA 269

CITATION: DTK Logging v Milne [2013] QCATA 269 PARTIES: Leigh Andrew Bardenhagen t/a DTK Logging (Appellant) v Neville Stuart Milne (Respondent) APPLICATION NUMBER: APL182-13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: K S Dodds, Judicial Member DELIVERED ON: 3 October 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal is refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – COMPENSATION – where there was a six month tenancy – where tenant abandoned premises during rental period – where premises were not relet until after the tenancy period had expired – whether owner had made all reasonable efforts to mitigate loss of rent 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. REASONS FOR DECISION [1] This is an application for leave to appeal a Tribunal decision in a minor civil dispute. The hearing was on 14 March 2013 and the decision given on 28 March 2013. The dispute involved a claim for compensation arising out of a residential tenancy. [2] Leave to appeal will only be granted if it is shown there is a basis for it: is there a reasonably arguable case of error on the part of the Tribunal such that an appeal is necessary to correct a substantial injustice to the -- 1 of 5 -- 2 applicant caused by that error; does the appeal for which leave is sought expose a question of general importance upon which a decision of the appellant Tribunal would be to the public advantage. Background [3] On 13 February 2012 the appellant entered into a tenancy agreement in respect of premises owned by the respondent for a period, 15 February 2012 to 14 August 2012. On 24 July 2012 the tenancy agreement was extended for a further period, from 13 August 2012 to 12 February 2013. On 8 November 2012 the tenancy was terminated when there was no response to an abandonment notice served on the property on 30 October 2012. [4] The respondent’s claim for compensation was for rent up until the premises were re-let on 18 February 2013, for damage to a double roller door requiring its replacement, for replacement of a roller door remote and some other damage repair. Grounds of Appeal [5] There were three grounds of appeal in the application for leave: 1. the magistrate erred in law in that she admitted into evidence a video of the operation of a roller door without first giving the appellant an opportunity to view such video, particularly taking into account that the appellant was appearing by telephone; 2. the magistrate erred in law in that she admitted into evidence an email filed with leave on 14 March 2013 without the appellant being given opportunity to read it or make submissions as to its admissibility or otherwise; 3. the magistrate erred in law in that she, in determining whether the respondent mitigated his loss, took into account irrelevant considerations. [6] The grounds were enlarged upon in submissions by the appellant’s solicitor received by the Queensland Civil and Administrative Tribunal (QCAT) on 6 June 2013. Discussion [7] I have read the submissions from the appellant’s legal representative received by QCAT. Whilst there were a number of items in the respondent’s claim for compensation the matters really in issue were the damaged and replaced roller door and the question of mitigation of the respondent’s damage from loss of rent. [8] The appellant was not present at the hearing of the matter. He was in Tasmania. At his request he appeared by telephone. The matter had -- 2 of 5 -- 3 been adjourned at his request from a hearing date of 17 January 2013 to 14 March 2013.1 [9] It appears from the record of the hearing that the appellant had been provided with copies of evidence to be led by the respondent explaining the roller door mechanism, its damage, the likely cause thereof and the required repair and cost. The appellant provided affidavit evidence to the hearing from two persons who were occupants of the property at the time it was abandoned and when the door was damaged. [10] The only matters which seemed to be contested at the hearing related to the double roller door and the period of time the premises remained vacant after the abandonment. Regarding the door, it seemed to be accepted that when the occupants (invitees of the appellant) abandoned the premises the roller door was damaged. What was in dispute was how the damage occurred. According to the evidence in the appellant’s case the damage occurred because the roller door and its remote were faulty. It had to be lifted by hand and in the course of doing that, because of its faulty condition, it was damaged. [11] The video referred to in the grounds of appeal appears to have been a brief film of the respondent’s female partner manually opening the replaced roller door after its motor had been disengaged. It was provided by the respondent to the Tribunal on the hearing date. The Tribunal investigated with the appellant whether he had available to him technology for it to be transmitted to him. He did not, so the member described, what it showed to him. [12] The other material referred to in the grounds of appeal appears to relate to an email the unrepresented respondent had at the hearing and provided to the Tribunal. The member received it and read its contents to the appellant. Decision [13] The respondent and his partner gave evidence about the occasion the roller door was damaged. There was also evidence from others with experience and expertise in powered roller doors such as the one in question. Those persons saw the damaged door, described the mechanism of the door, how to disconnect the motor and manually lift the door and how the damage the door suffered could have happened. Their description of how the damage could have happened tallied with the description by the respondent’s partner of what she saw. She said her attention was drawn to the door by voices and when she went and looked, observed the door being manually forced up. She immediately went and told the respondent what she had seen. He then immediately went and observed the door and saw the damage to it. 1 Emailed letter from Darrell Grey solicitor to the QCAT Registrar dated 16 January 2013. -- 3 of 5 -- 4 [14] As mentioned above, the video referred to in the grounds of appeal showed the respondent’s partner manually lifting a similar roller door to the one which had been damaged. It was the door which had replaced the damaged door. Its point was intended to show how, if the motor was properly disengaged, the roller door could relatively easily be manually raised without any damage. [15] The email, the subject of ground two of the appeal, was confirmatory of evidence from those others I have mentioned with experience and expertise about how the damage to the door in all probability occurred and was consistent with what the respondent’s partner said she had observed. [16] I am not persuaded that receipt of the video and the email amounted, in the circumstances, to the member “erring in law” or “denying the appellant natural justice” as submitted by the appellant. The appellant chose to appear by telephone. The items in questions were read or described to the appellant at the hearing. Had he appeared in person they may properly have been received in evidence. [17] Regarding the other matter complained of, the member’s conclusion that the respondent had not failed to mitigate his loss of rent after the abandonment of the premises, the member correctly directed herself that the onus lay upon the respondent to show that he had done all he reasonably could to mitigated his loss. [18] The garage door was replaced by 30 November 2012. The period to be considered was 30 November 2012 to 18 February 2013 when the premises were again rented albeit at a reduced rent. The member’s reasons for her decision in the respondent’s favour on this issue illustrate that she accepted that the Christmas period (November to February) was not a good time to be attempting to rent property in North Queensland due to the wet season and its weather consequences. She accepted the respondent’s evidence about what he had done in attempting to contact the appellant about compensation for the lost rent and in attempting to find another tenant. The reference in the reasons to the “complete disregard” the appellant showed towards his obligations under the rental agreement and to the damage done by his invitees to the premises rendering them unfit for rental before 30 November 2012, does not reveal any error in considering whether the respondent had discharged his onus. [19] The member’s reasons for her decision appear thorough and complete. She thoroughly considered the evidence. Her reasons illustrate she correctly understood the terms and application of the relevant legislation.2 Her conclusions were open to her on the evidence. Her reasons reveal no error. 2 Queensland Civil and Administrative Tribunal Act 2009; Residential Tenancies and Rooming Accommodation Act 2008. -- 4 of 5 -- 5 [20] I am not persuaded leave to appeal should be granted. As the brief summary of the matter set out above illustrates no basis has been shown to grant such leave. [21] The application is dismissed. -- 5 of 5 --