Amos v Mulliss and Anor [2012] QCATA 44

CITATION: Amos v Mulliss and Anor [2012] QCATA 44 PARTIES: Edward Amos (Applicant/Appellant) v James Mulliss Natalie Mulliss (Respondents) APPLICATION NUMBER: APL356-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member DELIVERED ON: 5 March 2012 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal is refused. CATCHWORDS: Residential Tenancy – where Tribunal made findings of fact which were open on the evidence – where applicant challenges the findings of fact made – no basis established to interfere with findings of fact Queensland Civil and Administrative Tribunal Act 2009, ss 28(3)(c), 142(3) Residential Tenancy and Rooming Accommodation Act 2008, ss 188(4), 419(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] The respondents entered into a tenancy agreement with Mr Amos to rent 83A Sandgate Road, Clayfield. At the conclusion of the tenancy on 3 June 2011 they vacated the premises and, they say, deposited the keys at Mr Amos’ post office box at the Clayfield Post Office. -- 1 of 3 -- 2 [2] Mr Amos would not agree to release the bond of $1,040.00 so the respondents brought an application to have the bond paid out to them. Mr Amos disputed their entitlement to the bond on the basis that he did not retrieve the keys from the Clayfield Post Office until 6 June, the carpets required cleaning and he also sought compensation for damage to a fridge. He also spent some time cleaning up the backyard and sought $200 compensation for his labour. [3] The matter came on for hearing before a Tribunal Adjudicator on 15 September 2011. At the conclusion of the hearing she ordered that the bond be released with $120.00 being paid to Mr Amos, and the balance of $920 being paid to Mr and Mrs Mulliss. [4] Mr Amos has filed an application for leave to appeal that decision. Leave is necessary as this is a decision in the minor civil disputes jurisdiction.1 [5] In his application and submissions Mr Amos does not identify any error of law on the part of the learned Adjudicator. He is contesting her findings of fact in respect of all issues. He relies on section 188(4) of the Residential Tenancy and Rooming Accommodation Act 2008 which obliges a tenant to leave the premises in the same condition they were in at the start of the tenancy, fair wear and tear accepted. [6] He relies on the explanatory note to the enactment of the RTRA Act in support of his submission. [7] As a matter of general principal, his contention is correct. However determining whether or not the premises have been left in the same condition, fair wear and tear accepted, involves questions of fact, and if there is a dispute, it is the Tribunal’s function to resolve those issues of fact. [8] Mr Amos claims he did not get the keys until Monday 6 June therefore he claimed extra rent because he did not get vacant possession. That disputed issue of fact was resolved by the learned Adjudicator in her accepting the evidence of Mr Mulliss and Mrs Mulliss that they deposited the keys on 3 June at the Post Office. Having heard evidence from both the respondents and Mr Amos it was open to her to come to the conclusion that she did. There is no basis upon which the Appeal Tribunal would interfere with that finding of fact. [9] With respect to the cost of carpet cleaning, Mr Amos did not produce any evidence that the carpet had been cleaned. The learned Adjudicator accepted that there was a provision in the Residential Tenancy Agreement requiring the respondents to clean the carpet and therefore made an order, in the absence to any evidence to the contrary, that a reasonable cost of carpet cleaning was $120. The Tribunal Adjudicators conduct hearings in residential tenancy matters every day of the week and sometimes hear multiple matters in a day many of which involve compensation for the 1 QCAT Act, s 142(3). -- 2 of 3 -- 3 cleaning costs. They are well informed as to the cost of carpet cleaning and are entitled to have regard to their general knowledge gained from hearing these cases. Section 28(3)(c) of the QCAT Act specifically provides that the Tribunal may inform itself in any way it considers appropriate. Mr Amos has not satisfied this Appeal Tribunal that that finding of fact contains error. [10] With respect to the cost of labour for cleaning up the backyard, the learned Adjudicator, quite rightly, did not allow this claim because Mr Amos did not give the respondents an opportunity to return to the premises and undertake the cleaning up work. She also, impliedly, accepted the evidence of the respondents that the condition of the backyard was similar to that when they arrived. [11] Finally, Mr Amos’ claim for the compensation for the refrigerator was out of time. The learned Adjudicator’s application of section 419(3) of the RTRA Act, which limits the claim for compensation to six months from when the lessor became aware of the breach, was correct and no error of law is demonstrated. [12] 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? [13] The findings of fact made by the learned Adjudicator were open to her on the evidence and nothing in Mr Amos’ submission to the Appeal Tribunal would warrant any interference with those findings of fact. There is no error of law. Therefore leave to appeal is refused. -- 3 of 3 --