Bendall v Michel; Michel v Belle Property [2013] QCATA 7

CITATION: Bendall v Michel and Anor; Michel and Anor v Belle Property [2013] QCATA 7 PARTIES: Cecilia Ann Bendall (Appellant) v Xavier Michel Yolen Michel (Respondents) Xavier Michel Yolen Michel (Appellants) v Belle Property (Respondent) APPLICATION NUMBER: APL299-12 / APL312-12 MATTER TYPE: Appeals HEARING DATE: 5 December 2012 HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member David Paratz, Member DELIVERED ON: 8 January 2013 DELIVERED AT: Brisbane ORDERS MADE: APL299-12 1. Leave to appeal allowed. 2. The Appellant Mrs Bendall is to pay to the Respondents Xavier Michel and Yolan Michel the sum of $ 499.00. APL312-12 1. Leave to appeal refused. CATCHWORDS: MINOR CIVIL DISPUTE – whether denial of natural justice – where claim for compensation for unlivability – whether premises unlivable – where tenants continued to reside in premises – where compensation claim exceeded the rent paid – relationship breakdown from the commencement of the tenancy – where multiple hearings – where Tribunal asked to make -- 1 of 8 -- 2 alternate findings of fact – where facts found open on the evidence Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 APPEARANCES and REPRESENTATION (if any): APPLICANT: Cecilia Ann Bendall in person RESPONDENT / APPLICANT: Xavier Michel and Yolen Michel in person RESPONDENT: Ella Frankiewicz and Justine Newland as authorised representatives for Belle Property Buderim REASONS FOR DECISION Mr Oliver [1] In this matter the Appeal Tribunal consisted of Mr Paratz, QCAT Member and me. I have had the benefit of reading his reasons in draft. I agree with his reasons, and his conclusions, and the orders he proposes. Mr Paratz [2] These are two Appeals being heard together. The matters in dispute concern a residential tenancy of an attractive pole-home set in bushland in the Sunshine Coast hinterland. [3] The house area is part of a much larger property of approximately 21 hectares which includes a commercial macadamia farm. [4] The landlord was Ms Bendall, who had built and lived in the house herself since 1989, before letting it out for the first time. [5] The tenants were Mr and Mrs Michel who had come to Australia from New Caledonia. Their first language is French. [6] Mr and Mrs Michel signed a lease for the house on 12 October 2011 and moved into occupation on 10 November 2011. [7] Within 4 days, matters began to sour and conflict began. [8] The Michels contacted the real estate agency on 14 November 2011 complaining about a urine smell in the premises. [9] On 17 November 2011 the Michels attended the real estate agency and a confrontation ensued. -- 2 of 8 -- 3 [10] That confrontation resulted in the landlord offering to release the tenants from the lease on the 17th November 2011, after only 7 days occupation, to refund all rental paid, and to pay the Michels $1,000 to compensate them for removalist costs. [11] An initial agreement was made that the Michels would move out on 25 November 2011, and then this was extended to 2 December 2011. [12] The Michels did not move out of the house. They stayed until June 2012. [13] Matters have escalated into physical confrontations on several occasions with Police being variously called to the offices of the real estate agency and to the property, and a physical altercation in the corridors of the Tribunal in Brisbane. [14] Ms Bendall has now moved to Tasmania, and says the stress of the events has severely affected her. [15] Mrs Michel has been treated by a psychologist on the Sunshine Coast for depression and anxiety related to the events. [16] In their proceeding for a minor civil dispute, tenancy matter, the Michels have claimed compensation of $25,000, which the learned Adjudicator described as far beyond the rent they have paid. Mrs Bendall in her cross application has claimed in her submissions that her property has sustained approximately $600,000 worth of damage. [17] The Michels have embarked on a course of voluminous correspondence, in which they make frequent references to legal rights and to various legislation. The real estate agency says it has received hundreds of emails from them (Affidavit of Felicity Stewart [24]). [18] The Michels contend that they have limited English language skills, and need an interpreter to assist them at hearings. They have complained about the quality of the interpreter provided. Despite their claimed oral difficulties, they seem quite able to formulate sophisticated legal claims and research legislation. Whilst their written documents are at times a little irregular in their phrasing and are repetitive, they clearly convey their meaning. [19] In the course of the appeal hearing I queried Mrs Michel as to her language skills. She said that she is able to comprehend and write in English if she takes time, and does so with the assistance of her husband and a dictionary. [20] In order for the Michels to be able to best comprehend this decision I have thought it best to deliver reasons in writing so they can read them through and understand them at their own pace. [21] The course of the proceedings has been quite complex with overlapping applications. There have been 6 separate applications and 3 appeals to -- 3 of 8 -- 4 date. There has also been a matter before the Anti-Discrimination Commission Queensland. [22] In addition, the Michels had applied for 3 of the applications to be transferred to the Magistrates Court, and that application was refused by the President on 3 May 2012. [23] An initial application, 76/11 was heard in the Nambour Magistrates Court. That application sought loss of amenity 95% rent reduction from commencement of tenancy to date of rectification, cleaning of premises (dog urine issue) $1,500, and loss of amenity workspace and income $2,500. On 19 December 2011 the Presiding Magistrate, as Tribunal Member, awarded the Michels the sum of $1,500 compensation for loss of amenity due to the urine smell. [24] A second application, 78/11 was also heard in the Nambour Magistrates Court on 19 December 2011. That application was dismissed. [25] An Appeal APL054-12 against the decision of the Magistrate awarding $1,500 compensation for the urine smell was heard by the President on the papers and delivered on 31 August 2012. His Honour found that the compensation awarded was fair and equitable, and that no error had been shown on the part of the learned Magistrate and refused the application for leave to appeal. [26] A further 4 applications were then heard together by an Adjudicator at Brisbane on 9 May 2012, and the decision was delivered on 8 August 2012. [27] The Adjudicator set out the various applications at [1] to [4] of the decision as follows: Application 648/12 By application filed 06 January 2012 at Nambour as application 2/2012 and subsequently transferred to Brisbane, Xavier Michel and Yolen Michel as tenants sought cancellation of a notice to leave due to non liveability issued by Belle Property Rentals as agent for the owner Cecilia Ann Bendall on 19 December 2011 and expiring 09 January 2012. Application 649/12 By application filed 16 January 2012 at Maroochydore as application 16/2012 transferred to Nambour as application 4/2012 and subsequently transferred to Brisbane, the owner Cecilia Ann Bendall sought possession of the premises based on the same notice to leave due to non liveability issued by Belle property rentals as agent for the owner Cecilia Ann Bendall on 19 December 2011 and expiring 09 January 2012. Application 466/12 By application filed 07 March 2012 at Brisbane, the tenants Xavier Michel and Yolan Michel sought compensation of $25,000 under various heads including -- 4 of 8 -- 5 leaking roof, insecurity of premises, lack of keys, presence of cockroaches, loss of personal property and loss of data from a laptop as well as the addressing of maintenance issues. Application 773/12 By application filed 19 April 2012 at Brisbane, Cecilia Ann Bendall sought termination of the tenancy based on the objectionable behaviour of the tenants Xavier Michel and Yolan Michel. [28] The Adjudicator ordered that: (1) Cecilia Ann Bendall pay to Xavier Michel and Yolan Michel the sum of $730.00 (2) Future communication by Cecilia Ann Bendall and/or agent Belle Property Buderim to Xavier & Yolen Michel shall be by hand delivery to the mailbox 89 Dahlia Road, Verrierdale and/or by prepaid ordinary post. [29] The current two appeals are both from that decision of the Adjudicator. The two appeals are as follows: APL299-12 The Appellant is Cecilia Ann Bendall. The Respondents are Xavier Michel and Yolen Michel. The orders sought are to set aside the order that Cecilia Ann Bendall pay to Xavier Michel and Yolen Michel the sum of $730; and that the lease be terminated as at 9 May 2012. APL312-12 The Appellants are Xavier Michel and Yolen Michel. The Respondent is Belle Property Buderim. The orders sought are “Rectification of the facts as per the evidences. Orders sought are found in application 466/12”. [30] The Michels filed an 11 page written submission on 12 November 2012, and attended the appeal hearing in person with an interpreter. [31] Ms Bendall filed a 10 page written submission in reply on 26 November 2012. She appeared by telephone at the appeal hearing from Tasmania. [32] The submissions raise and discuss many issues of fact. It was pointed out to the parties at the start of the appeal hearing that in order to obtain leave to appeal, it is necessary to show that the Adjudicator made an error of law, or that a decision of fact made by him was unsustainable on the evidence. [33] To a large extent, the submissions raise arguments as to whether the Adjudicator made the correct decision on the facts as each party saw them, not as to whether his decision was open to him on the facts. In other words, the parties were largely seeking a re-hearing of the facts. -- 5 of 8 -- 6 [34] Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.1 [35] The hearing before the Adjudicator took 6 hours. It was a full and complete hearing, and the Adjudicator heard evidence from all parties. This was clearly sufficient time for him to identify and understand the issues. [36] Whilst this matter has been fiercely contested, and has generated numerous applications and appeals, it is not fundamentally complex. There is a written lease which speaks for itself. There are several issues of fact which were in heated contention, but were limited in their scope: (a) Were the premises rendered unliveable because of a urine smell? (b) Was compensation due for a roof leak? (c) Was compensation due because the house was not secure? (d) Was compensation due for there not being two keys made available for each lock in the house? (e) Was compensation due for the presence of cockroaches? (f) Was compensation due for the theft of a laptop computer; and additionally for the loss of data on the computer? (g) Did the conduct of the Michels constitute objectionable behaviour? [37] The Adjudicator considered each of these issues in the context of the whole history of the matters. He found that there was a “complete breakdown of any workable relationship between the parties” [45]. [38] It is this relationship breakdown that has infected and inflamed all the issues in this matter. [39] In Paragraph 2 of their submissions, the Michels allege that they were denied natural justice. [40] In 2(a) they contend that “We were medically unfit to participate before the QCAT during the hearing of the 09 May 2012 as per the medical certificates/psychological reports”. [41] Medical evidence had been presented before the day of the hearing, supporting an application for an adjournment. There was a letter from 1 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. -- 6 of 8 -- 7 Jennifer Turner, psychologist, dated 3 May 2012 which relates her belief that it could be detrimental to Mrs Michel’s mental health for the hearing to be conducted on 9 May, and supporting an adjournment for at least a month. That suggestion however does not indicate an incapacity on the part of Mrs Michel on the hearing day. [42] A one line medical certificate from Dr Vera Ivovic dated 1 May 2012 certified that Mrs Michel was physically and emotionally unable to attend the Tribunal. [43] An order was made on 4 May 2012 refusing the request for an adjournment. [44] Issues relating to the health of the Michels were ventilated at the start of the hearing, and the Adjudicator was satisfied that it was proper to proceed in the matter. [45] The Michels further allege in 2(c) that Yolen Michel spoke under high stress, and that the interpreter on the day was incompetent. [46] The Michels refer to the audio-tape of the hearing. They do not point however to any specific incidence on the recording of a failure of proper translation. [47] No proper basis appears to review the decision of the Adjudicator to proceed to hear the matter, or to accept that the hearing was affected by mistranslation. [48] The balance of the Michel’s submissions relate to claimed “Facts about error of law and/or facts in the QCAT „Reasons of Decision‟.” [49] It is difficult to draw clear alleged errors of law from the Michels’ submissions. They variously allege that the Adjudicator “failed to observe the procedure” [p.2]; showed bad faith and bias [p.4]; that his consideration was incoherent and irrelevant [p.4]; that he failed to make a decision [p.4]; considered uncertain facts [p.5]; has “no notion of time” [p.7]; and “was illogic” [p.7] [50] In her submissions Ms Bendall also canvasses many issues of fact that were heard and determined by the Adjudicator. [51] In the course of the appeal hearing, both the Michels and Ms Bendall were asked to point out specific instances where the Adjudicator failed to properly consider an issue before him, or a mistake that he had made. [52] Neither party identified at the appeal hearing any issue which the Adjudicator had failed to properly consider. [53] The only issue that was identified as a mistake, related to the awarding of compensation in favour of the Michels for the cost of replacing a front door lock for $231. Both parties agreed that the Michels had only obtained a quote, and that payment had been made by Ms Bendall. -- 7 of 8 -- 8 There was agreement that compensation should not have been awarded in that amount. [54] Having read the Adjudicator’s decision as a whole, I am satisfied that the Adjudicator brought an independent mind to the issues, and made a considered and reasoned judgment. [55] Because this is an appeal from a decision of the tribunal in its minor civil dispute jurisdiction, leave is necessary. Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error? [56] Further, a time must come when it has to be asked how much public time and expense should be spent on a particular private dispute. French CJ commented in Aon Risk Services Australia Limited v Australian National University [2009] HCA27 at [23] that: “… the adversarial system has been qualified by …the realisation that that the courts are concerned not only with justice between the parties, which remains their priority, but also with the public interest in the proper and efficient use of public resources.” [57] These matters have already consumed considerable time in the Magistrates Court, this Tribunal, and the Anti-Discrimination Commission. The same issues are essentially being constantly re-ventilated. A time must come when enough is enough. [58] The learned Adjudicator clearly turned his mind to all relevant issues in these matters, gave them careful consideration, and with the exception of the compensation for the front door lock, there is no reasonably arguable case that the learned Adjudicator was in error. [59] There is no question of general importance that should be determined by the Appeal Tribunal; there is no reasonable prospect of substantive relief on appeal; and there is no evidence that a substantial injustice will result if leave is not granted. [60] In order to correct the mistake as to compensation for the front door lock, leave to appeal should be granted in Appeal 299-12, and the order be amended to read that compensation of $499 be paid. [61] Leave to appeal on Appeal 312-12 should be refused. -- 8 of 8 --