Duryea v Hiles [2013] QCATA 244

CITATION: Duryea v Hiles [2013] QCATA 244 PARTIES: Carolyn Duryea (Appellant) v Norma Hiles (Respondent) APPLICATION NUMBER: APL439-12 MATTER TYPE: Appeals HEARING DATE: 13 August 2013 HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member DELIVERED ON: 3 September 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal is granted. 2. Insofar as the decision of 23 November 2012 orders that the applicant must pay the respondent the sum of $19,798.00 the decision is set aside. 3. The application is remitted to the minor civil disputes jurisdiction for reconsideration by the original adjudicator. 4. The applicant must file in the minor civil dispute proceeding any further evidence, including expert evidence, in response the report prepared by Mr Finlay dated 10 September 2012 within 28 days of the publication of this decision. 5. The respondent must permit the applicant access to the property for the purposes of preparing any further evidence upon the giving of 5 days notice to the respondent. -- 1 of 6 -- 2 CATCHWORDS: Residential Tenancy – where applicant rented a acreage block for the purposes of keeping racehorses – where tenancy for over 4 years – where damage and wear and tear caused by the keeping of horses – where late production of a report on the cost of structural damage to reinstate the premises – whether the applicant given sufficient time to meet the claim prior to the hearing – whether a denial of procedural fairness – where applicant failed to seek an adjournment of the hearing or object to the late production – where applicant self represented. Queensland Civil and Administrative Tribunal Act 2009 ss 28 and 29. QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. Cachia v Grech [2009] NSWCA 232; Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577; Hotrod Mobile Welding Services v Suncity Holdings Qld Pty Ltd [2013] QCATA 170; Kioa v West (1985) 159 CLR 550. APPEARANCES and REPRESENTATION (if any): APPLICANT: The applicant was self represented RESPONDENT: The respondent was self represented REASONS FOR DECISION [1] Ms Hiles is the owner of an acreage property at Kianawah Road, Wynnum West. It is a 2 acre property set up for horses with a barn which includes stables, day yards and a riding arena. [2] The applicant entered into a tenancy agreement with Ms Hiles in July 2007 to rent the property for a weekly rental of $500.00 per week. The tenancy continued until 15 July 2012. It was always intended that the property be used by the applicant to stable race horses and use the property for the purposes of keeping, training and maintaining horses. [3] After vacating the property, Ms Duryea filed an application for a return of the bond that was paid at the commencement of the tenancy. Ms Hiles -- 2 of 6 -- 3 then filed a cross claim for compensation because, she says, when the tenants left the property there was considerable damage to the property’s infrastructure. The total claim for compensation was $65,000.00. Of the total claim there were two substantial items; one was the cost to reinstatement of the large riding arena at a cost of $39,449.30, and the other was to repair “structural damage” at a cost of $19,798.00. [4] The application was initially listed for hearing on 30 August 2012. At this time the claim for structural damage had not been formulated. The hearing was adjourned with directions for either party to file any further evidence within 14 days of the new hearing date. [5] A final hearing was conducted by a Tribunal Adjudicator on 27 September 2012. The decision in the matter was reserved and on 23 November 2012 the Tribunal published its decision to the parties and ordered the applicant to pay to Ms Hiles the sum of $21,928.38. The bulk of this was made up of the claim for structural damage. In part satisfaction of that decision the $2,000.00 rental bond was payable to Ms Hiles. [6] Ms Duryea filed an application for leave to appeal or appeal the Tribunal’s decision on 19 December 2012. The only issue in contention in the appeal is the claim for compensation for structural damage the cost of which is $19,798.00. [7] Because this is an appeal from a decision in the minor civil dispute jurisdiction leave to appeal 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 to the applicant caused by some error?3 Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?4 [8] As I said, the initial claim for compensation did not include the claim for structural damage. It was after the adjournment that the counter claim for compensation was substantially amended to include the structural damage. The direction made on 30 August was that the parties were to exchange any further material 14 days prior to the hearing, which was subsequently notified to the parties as being listed for 27 September 2012. Although, it appears from the file, that Ms Hiles’ statements, including the statement of Mr Finlay the witness who provided the quote for the structural damage of $19,798.00 was filed on 13 September 2012, Ms Duryea told me during the appeal hearing, that she only received those documents 48 hours prior to the hearing. She complained that 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. -- 3 of 6 -- 4 because she got the report from Mr Finlay so late that she really did not know what to do with it and just proceeded to the hearing. [9] I have read the transcript of the hearing and although Ms Duryea was represented by a person from the Tenants Advocacy Service there was no complaint made about the late production of the Finlay report. The learned Adjudicator did address this at the beginning of the hearing but did not inquire as to whether or not the tenants were in a position to address the contents of the report. [10] The report or quote itself is very general. It describes the work that needs to be done, identifies certain work that is excluded from the pricing, provides a quote for all of the work to be undertaken which is said to be responsibility of the tenants. There is no break down of the costs, such as the cost of supplier materials, labour or the cost of any individual items of work to be undertaken. There is no estimate of the time to be taken to carry out the work. It is difficult to determine, on the face of the quote, whether the amount to be charged is reasonable. [11] During the course of the hearing the applicant did not seriously challenge the contents of the report or the costings, although it was put to the learned Adjudicator that they should not have to pay for any repairs because all of the repairs were as a consequence of fair, wear and tear on the basis that the property was to be used as a thoroughbred stabling complex. It is reasonable and to be expected that the property would depreciate to a degree as a result of this use. [12] The learned Adjudicator’s reasons dealing with the structural damage adequately set out why he decided to accept the claim in full. He noted that the general statement by the applicant that they did not agree with Mr Finlay’s quote was not sufficient for him to disregard Mr Finlay’s evidence nor the evidence of Ms Hiles about the condition of the property after the tenants left. Nor the cost to carry out the repair work. He did not deal with any issue about procedural fairness because it was not raised before him. [13] However, during the appeal hearing the applicant raised the issue of procedural fairness on the basis that they simply did not know how to deal with the report of Mr Finlay. It seems obvious that they were not given sufficient time to meet the case that was put against them in respect of the cost of rectifying structural damage. Furthermore, Mr Finlay was not questioned about what would constitute fair, wear and tear given the intended use of the property for stabling horses. In my view there should have been some consideration given to this and perhaps a discount for reasonable wear and tear. As it is, the respondent is having all of the structural items replaced new for old when it is clear from the photographs that there is some pre existing wear and tear to posts and rails and the premises generally. [14] Although, as I said, the learned Adjudicator’s conclusions were open on the evidence before him, but the duty under s 29 of the QCAT Act is to ensure that parties understand the nature of assertions made in the -- 4 of 6 -- 5 proceeding and the legal implications of those assertions. Although there is an emphasis in the minor civil dispute jurisdiction on expedition and informality this does not mean that the Tribunal should pursue speedy resolution at all costs5. The Tribunal must act fairly and according to the substantial merits of the case6 and observe the rules of natural justice7. [15] The claim made is for a significant amount of money. The property was used as a horse property for more that 4 years, some structural changes were made with the consent of the respondent and it is common knowledge that stabled horses can be hard on improvements. It could not have been contemplated by the respondent that the horse facilities and improvements would have been returned in exactly the same condition as at the commencement of the tenancy. Some account must be taken for reasonable wear and tear on the improvements. [16] The applicant’s were put at a disadvantage by the late delivery of the Finlay report and were obviously unaware of their right to ask for an adjournment of the hearing to give them an opportunity to consider and if need be call evidence in response. As Mason J (as his Honour then was) observed in Kioa v West,8 the requirements of procedural fairness must be adjusted to the statutory framework governing the Tribunal in question: What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject- matter, and the rules under which the decision-maker is acting: Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552-3; National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at 311, 319-321. In this respect the expression “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations … [17] I recognise that usually an appeal tribunal will not consider a point first raised in the appeal if it was not raised before the primary decision maker. However, in the minor civil disputes jurisdiction the QCAT Act contemplates that parties will be self represented and therefore some allowance must be made for any failure to take a technical point, e.g. object to evidence that was not provided in accordance with directions made. Furthermore under s 28(2) requires the tribunal to act fairly and according to the substantial merits of the case. For this reason a self represented litigant should not be disadvantaged if a technical point is not 5 Hotrod Mobile Welding Services v Suncity Holdings Qld Pty Ltd [2013] QCATA 170 [25]. 6 QCAT Act s 28(2). 7 Ibid s 28(3). 8 (1985) 159 CLR 550 at 584-585. -- 5 of 6 -- 6 taken during the initial hearing, and the application for leave to appeal has merit on a question of law. [18] I am satisfied that there has been a denial of procedural fairness with respect to the Finlay report and as that is a matter of law, leave to appeal is granted. I have come to the conclusion that the matter should be remitted to the minor civil dispute jurisdiction with directions that the applicant file any statements of evidence, including expert evidence, in response to the statement of Mr Finlay and the matter be reconsidered before the original adjudicator. -- 6 of 6 --