Cordery v Century 21 - Investment Focus [2013] QCATA 218

CITATION: Cordery & anor v Century 21 – Investment Focus [2013] QCATA 218 PARTIES: Miss Fleur Cordery Mr Neale Gray (Applicants/Appellants) V Century 21 – Investment Focus (Respondent) APPLICATION NUMBER: APL209 -13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe OAM, Senior Member DELIVERED ON: 23 July 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: MINOR CIVIL DISPUTE – residential tenancy – where fixed term tenancy – where tenants gave notice of intention to leave – where tenants left on date referred to in notice – where agent claimed rent for the balance of the term – whether agent entitled to claim rent for balance of term – whether grounds for leave to appeal Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 277(4), 327(2), 331(2)(g) Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Chambers v Jobling (1986) 7 NSWLR 1 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 -- 1 of 4 -- 2 Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 APPEARANCES and REPRESENTATION (if any): The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009. REASONS FOR DECISION [1] On 14 May 2013, an Adjudicator ordered that the rental bond of $1,320 be paid as follows: $959.50 to the lessor, represented by Century 21 – Investment Focus; and $360.50 to the tenants, Ms Cordery and Mr Gray. [2] Ms Cordery and Mr Gray want to appeal that decision. They say that the learned Adjudicator erred in finding that they owed two weeks rent. They say that the learned Adjudicator erred in finding that they owed $60 in cleaning fees because they left the premises cleaner than when they first rented the property. They say that the learned Adjudicator erred in finding that they should pay for a replacement light fitting that they broke, because it was an old fitting and it could be repaired. [3] 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 appeals tribunal, would be to the public advantage?4 [4] Ms Cordery and Mr Gray have filed fresh evidence with their application for leave to appeal. The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined5. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Ms Cordery and Mr Gray have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?6 [5] Ms Cordery and Mr Gray have filed colour photos of the premises. These photographs were taken well before the hearing. Ms Cordery and Mr Gray 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. 5 ss 137 and 138 QCAT Act. 6 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408. -- 2 of 4 -- 3 could have produced the photos at the hearing and they have not explained why they did not. I am not satisfied that the photos will have an important impact on the result of the case. Although the photos show that the premises were clean, they are not photos of the specific areas which Century 21 says were left dirty. There are no photos of the light fittings, window tracks or garage floor. I will not allow that evidence to be admitted. [6] Ms Cordery and Mr Gray have also filed documents about the cost of a replacement light shade, some blogs about removing and replacing light shades and RTA information about responsibility for damage. The last of these documents is a submission, rather than evidence, and I will accept it. The documents about the cost and ease of replacing light shades should have been available at the hearing and, once again, Ms Cordery and Mr Gray have not explained why they did not produce it at the hearing. An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party‟s case at the initial hearing. That evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Adjudicator. [7] Ms Cordery and Mr Gray say that, because they gave notice to leave, and left on that date, they do not owe any rent. [8] Section 277 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) sets out the ways in which a residential tenancy agreement ends. An agreement ends if the tenant gives a notice of intention to leave and hands over vacant possession on, or after, the handover day7. Section 327(2) states that a notice of intention to leave is not ineffective merely because the handover day is earlier than the day the term ends. [9] Section 331(2)(g) states that handover day is the later of 14 days after the notice is given or the day the term of the agreement ends. The effect of s331(2)(g) is that, even with a notice of intention to leave, the handover day is the date the fixed term ends, and not an earlier date. Applying s 277, and despite s 327(2), the agreement ends no earlier than the last day of the fixed term. [10] The learned Adjudicator was correct in finding that Ms Cordery and Mr Gray therefore had a continuing obligation to pay rent until the end of their fixed term. [11] The appeals tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.8 An appellate tribunal may interfere if the conclusion is „contrary to compelling inferences‟ in the case.9 As the High Court said in Fox v Percy: In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In 7 Residential Tenancies and Rooming Accommodation act 2008 (Qld) s 277(4). 8 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. 9 Chambers v Jobling (1986) 7 NSWLR 1 at 10. -- 3 of 4 -- 4 such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.10 [12] I have considered Ms Cordery and Mr Gray‟s arguments about the cleaning and the replacement light. The learned Adjudicator was entitled to make those findings and there is nothing in the transcript that persuades me that he should have taken a different view of the facts. [13] Ms Cordery and Mr Gray challenge the learned Adjudicator‟s decision to order costs. Rule 83 of the Queensland Civil and Administrative Tribunal Rules 2009 allows the tribunal to order the prescribed filing fee as costs. It is an order that is usually made. The dispute did not resolve at conciliation. Century 21 succeeded in its claim. I am satisfied that the learned Adjudicator‟s order was appropriate. [14] There is no question of general importance that should be determined by the appeals tribunal. There is no reasonably arguable case that the learned Adjudicator 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. 10 Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ. -- 4 of 4 --