Durrand v Karaolis [2012] QCATA 182

CITATION: Durrand and Anor v Karaolis and Anor [2012] QCATA 182 PARTIES: Michael Durrand Jaelene Durrand (Applicant/Appellant) v Helen Karaolis The estate of the late Elefteri Karaolis (Respondent) APPLICATION NUMBER: APL095-12 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President DELIVERED ON: 18 September 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. Application for leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – LANDLORD AND TENANT – TERMINATION OF THE TENANCY – GENERALLY – where agent for landlord sought order for rental arrears and compensation – where Tribunal made order in favour of landlord – where tenants lodged response and counter-application – where Tribunal dismissed counter-application – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009, ss 3, 4, 13, 32, 142 Residential Tenancies and Rooming Accommodation Act 2008, s 419 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 QUYD Pty Ltd v Marvass Pty Ltd [2009] -- 1 of 5 -- 2 1 Qd R 41 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 („QCAT Act‟). REASONS FOR DECISION [1] Mr and Mrs Durrand rented residential premises at Caboolture from Ms Karaolis for two years. The terms of their occupation was set out in a general tenancy agreement under the Residential Tenancies and Rooming Accommodation Act 2008 („RTRA Act‟). [2] After the tenancy expired Ms Karaolis‟ agents (who had arranged and supervised the tenancy) brought proceedings on her behalf in QCAT‟s Minor Civil Disputes jurisdiction claiming arrears of rent, cleaning charges after Mr and Mrs Durrand vacated, and compensation for a damaged lock and a missing hose and fittings. The agents sought an order that the amounts claimed be subtracted from the bond which the tenants had paid. [3] Mr and Mrs Durrand lodged a response and counter-application denying the landlord‟s claims and seeking the return of two thirds of the rent they paid – ie, the sum of $19,563.11, said to be compensation for misleading and deceptive conduct, statutory breaches of duty, statutory offences, negligence and misconduct on the part of the landlord; a further amount of $1,600.00 for compensation „…for the state of cleanliness and repair that the house was in upon the commencement of our tenancy‟; and, punitive damages of at least 5 percent of the profit of the real estate agents‟ business during the period of the tenancy. [4] The matter came on for hearing before a QCAT Senior Member, sitting in the minor civil disputes jurisdiction on 26 March 2012. Mr and Mrs Durrand and a representative of the real estate agent appeared and presented evidence, and made submissions. At the end of the hearing the learned Senior Member ordered that the Durrands pay rental arrears of $335.70, compensation of $127.00, and the filing fee for the original application to QCAT of $53.00; and, that the bond held by the Residential Tenancies Authority be paid out as to $515.70 to the agents, and $172.95 to Mr and Mrs Durrand. [5] Mr and Mrs Durrand seek leave to appeal that decision. [6] At the hearing the learned Senior Member also dismissed Mr and Mrs Durrand‟s counter-claim on the basis that most elements of it were out of time because of s 419 of the RTRA Act, which requires that any application to QCAT about an alleged breach of the term of a residential tenancy agreement must be brought within six months after the tenants (in this case) become aware of the breach. She dismissed the claim for a share of the profits of the real estate agency on the basis that QCAT had no jurisdiction to make such an order. -- 2 of 5 -- 3 [7] The Queensland Parliament has made it clear, in the QCAT Act, that so far as possible minor civil disputes of this kind are to be resolved by a simple procedure which is speedy, inexpensive and final.1 That conclusion is reinforced by the fact that before a party can appeal a decision in this jurisdiction it must obtain leave from the Appeal Tribunal: QCAT Act, s 142(3)(a)(i). In order words, there is not an automatic right to appeal these decisions; rather, an applicant must first establish that it has a right to a grant of leave. [8] 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?2 Is there a reasonable prospect that the applicant will obtain substantive relief?3 Is leave necessary to correct a substantial injustice to the applicant caused by some error?4 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?5 [9] The learned Senior Member received documentary evidence from the landlord‟s agent in connection with the claim for arrears of rent. Mr Durrand gave evidence disputing the claim but did not produce documents which, he claimed, would corroborate his case. Ultimately the Tribunal was required to decide which version of the facts it preferred. In circumstances where the agent was able to produce documentary evidence, the decision to prefer the agent‟s evidence to Mr Durrand‟s uncorroborated counter-assertions was unsurprising and it is not open to criticism. [10] As for the claims for cleaning and compensation the learned Senior Member considered them carefully during the hearing and disallowed much of the cleaning claim. Again, the reasons she gave for her decision were based upon findings she had to make about conflicting evidence, but those findings are not discordant with that evidence or suggest any error on her part. [11] Both in the original MCD hearing and here, Mr and Mrs Durrand filed very lengthy submissions purporting to raise quite complex legal arguments to show why they did not owe the agents or the landlord anything and should, themselves, receive very large sums by way of compensation. [12] Their dispute with the agent about the rent and the landlord‟s claims for compensation involved nothing more than factual disputes and, for the reasons set out above, the decision of the learned Senior Member about them was in line with the evidence and, in particular, the weight of the evidence she received – ie, her findings about factual disputes concerning 1 QCAT Act, ss 3(b), 4(c), 13(1). 2 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 3 Cachia v Grech [2009] NSWCA 232 at 2. 4 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 5 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 5 -- 4 those claims reflected the strength of the evidence presented by each of the parties. [13] Mr and Mrs Durrand, in their application for leave to appeal, criticise the learned Senior Member for not, they say, adjudicating upon some issues raised in their counter-claim and in their submissions. If those things occurred, they happened because of the excessive and confusing welter of material they filed in the original proceedings. The same has happened in the Appeal Tribunal – they have attempted to make a „federal case‟ out of what is, in truth, a simple matter arising out of a normal residential tenancy governed by the RTRA Act. [14] They say that the learned Senior Member did not address the first, fifth or sixth orders sought in their response and counter-application but the printed QCAT form they used only seeks four items of relief, and their other claims are to be found in the fourteen pages of closely typed material which they attached to the response. It is impossible to identify, from that document, which of their claims they now say were not fully addressed. [15] They also say that „requests‟ in paragraphs 14, 26, 39, 46, 51, 66, 67, 69, 71, 73 and 101 of their written submissions were not „reviewed or responded to‟. [16] It is true that the learned Senior Member did not refer to those paragraphs in the oral reasons that she gave at the conclusion of the hearing. To do so would, however, have been an arid and futile exercise, for the reasons which follow. [17] In both their original submissions with the documents they filed in the Tribunal and in the thirty-six pages of, again, closely typed written submissions the Durrands have delivered to the Appeal Tribunal they appear to be contending that the learned Senior Member erred in failing to understand that their counter-claims were brought, not under the RTRA Act, but on “statutory and common law grounds” including the Fair Trading Act 1989 or the Australian Consumer Law (Qld). [18] It is to be noted, firstly, that the submissions largely re-argue factual issues, decided against them at the first hearing. For the reasons set out above, those submissions do not establish a ground entitling Mr and Mrs Durrand to leave to appeal. [19] Secondly, the submissions are, in truth, no more than an attempt to overcome the learned Senior Member‟s finding that their claims for compensation were statute barred because they arose out of what Mr and Mrs Durrand alleged were breaches of the tenancy which, however, had occurred more than six months before they filed their response and counter-claim and were, therefore, extinguished by s 419 of the RTRA Act. That conclusion rests upon a factual finding: that the alleged breaches were old, and that Mr and Mrs Durrand had ample opportunity to note their existence, and to bring proceedings about them. [20] I have listened to the audio recording of the hearing before the learned Senior Member. The evidence she received, and Mr and Mrs Durrand‟s submissions, made that finding inevitable. They were attempting, under -- 4 of 5 -- 5 the guise of a claim for compensation, to revive what, on their own evidence, were old complaints about the conditions of the premises about which they had failed to take any action. [21] Once this is appreciated, it is unnecessary to address their arcane arguments about the force and effect, and applicability, of the RTRA Act or other legislation upon which they purport to rely. Their counter-claims all depended upon complaints which they now said they had about the condition of the premises which were, simply, made too late. [22] For these reasons, the application for a grant of leave to appeal must be refused. -- 5 of 5 --