Diane Altmann v LJ Hooker Bay Islands [2012] QCATA 67

CITATION: Altmann v LJ Hooker Bay Islands [2012] QCATA 067 PARTIES: Diane Altmann (Applicant/Appellant) v LJ Hooker Bay Islands (Respondent) APPLICATION NUMBER: APL011-12 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Acting Deputy President DELIVERED ON: 27 April 2012 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal refused. CATCHWORDS: Minor civil dispute – residential tenancy matter – where conclusions open on the evidence Queensland Civil and Administrative Tribunal Act 2009, s 142(3) APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] Ms Altmann rented a house on Russell Island. The respondent was the managing agent. The tenancy commenced in 2008. [2] After vacating the premises LJ Hooker arranged for cleaning and pest control and sought to claim the cost of that from Ms Altmann. The cleaning cost was $430.00 and the pest control was $240.00. -- 1 of 2 -- 2 [3] Ms Altmann disputed that she had any liability for these costs and bought an application in the Tribunal to have the bond money of $611.43 returned to her rather than it be used to compensate the lessor for these costs. [4] The matter came on for hearing on 22 December 2011. The learned Adjudicator heard evidence from Ms Altmann as well as Mr McGuire, a representative of the respondent. Having heard that evidence and considered the documents produced he made an order that of the bond money, $320.00 be paid to the respondent and $291.43 be paid to Ms Altmann. He reduced the claim for cleaning to $200.00 and the pest control to $120.00. He did this after hearing evidence from Ms Altmann as to the condition of the premises when she went in and from Mr McGuire about the extent of cleaning that was necessary after she vacated. [5] From that decision Ms Altmann has filed an application for leave to appeal or appeal. An appeal is not as of right, Ms Altmann needs leave or permission of the Appeal Tribunal to appeal.1 She contends that the learned Adjudicator made an error in that there was a lack of proof about what work was carried out on the premises because only quotes were produced. Further, she contends that the rent was not in arrears and she did not have a copy of the entry report which was prepared in 2008. [6] For leave to appeal to be granted Ms Altmann must identify some error on the part of the learned Adjudicator. She has filed extensive submissions which really reiterate all those matters that were argued before the Adjudicator and appear in the transcript of evidence. Although she is dissatisfied with the decision, she has not been able to identify any error on the part of the learned Adjudicator. The learned Adjudicator certainly took into account her evidence by reducing the cost of the cleaning and the pest control but was not satisfied completely that Ms Altmann should not bear some responsibility for those costs. [7] The decision he made was open on the evidence that was before him and it is not for this Appeal Tribunal to interfere with his conclusions of fact unless those conclusions of fact were simply not open on the evidence. Ms Altmann has been unable to demonstrate that that is the case here. It is not for the Appeal Tribunal to determine where the truth lies between the versions given by either party.2 [8] In the circumstances, leave to appeal must be refused. 1 QCAT Act, s 142(3). 2 Fox v Percy [2003] 214 CLR 118. -- 2 of 2 --