Felton v Raine and Horne Real Estate [2011] QCATA 330

CITATION: Felton and Anor v Raine and Horne Real Estate [2011] QCATA 330 PARTIES: Mr Matthew Felton Miss Shandelle Maddox (Applicants/Appellants) v Raine and Horne Real Estate (Respondent) APPLICATION NUMBER: APL210-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President DELIVERED ON: 6 December 2011 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal is refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RENTAL TENANCY – Where applicant rented residential premises from the respondent – Where the applicant brought proceedings claiming bond and compensation for damage as a result of excess mould in the property – Where a Magistrate awarded the applicant some of the compensation sought – Where the applicants seek leave to appeal that decision on the grounds they were denied natural justice – Whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009, ss 95(2)(a), 142(3)(a)(i) Cachia v Grech [2009] NSWCA 232 at [13] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Kioa v West (1985) 159 CLR 550 McIver Bulk Liquid Haulage Pty Ltd v Freehauf Australia Pty Ltd [1989] 2 Qd R 577 -- 1 of 6 -- 2 QUYD Pty Ltd v Marvass Pty Ltd [2009] 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 Background [1] The Applicants, Mr Matthew Felton and Ms Shandelle Maddox, were the tenants in residential premises at 1338 Yarrabah Road, Second Beach (“the property”). On 7 May 2010 they entered into a six month lease, for the period commencing on 7 May 2010 and ending on 3 November 2010. [2] The property was managed by the Respondent, Raine and Horne Real Estate, Gordonvale, on behalf of the owners. [3] In their originating application in QCAT‟s Minor Civil Disputes jurisdiction Mr Felton and Ms Maddox claimed that the excessive mould in the property caused damage to their personal possessions, and sought return of the bond held by the RTA in the amount of $1,400.00 and compensation of $21,198.94, articulated as follows: Items (furniture, bedding etc.) lost to mould $9,598.94 Clothes destroyed by mould – all 6 people in the house lost most of their clothes but as I don‟t have original receipts and when I approached k-mart and best and less they do not provide past receipts or quotes. So it‟s broken down to around $165.00 per person worth of clothes. $1,000.00 Linen and bedding lost to mould $1,000.00 Food having to be bought everyday – 108@$70.00 $7,560.00 Petrol to get food everyday – 108@$10.00 $1,080.00 Rent reduction @ $40.00 for 24 weeks $960.00 The Hearing [4] The originating application was heard in Cairns on 16 May 2011, resulting in Orders that the $1,400.00 bond held by the RTA be returned to Mr Felton and Ms Maddox, and that the Respondent pay $2,500.00 in compensation. [5] The learned Magistrate who heard the matter, sitting as a QCAT Member, accepted that Mr Felton and Ms Maddox were justified in having concerns about the mould in the property. The Respondent argued that given the geographical location of the property in a rainy and humid region, the tenants should have anticipated some mould and the need to wipe their -- 2 of 6 -- 3 possessions regularly, and also alleged that the matter was simply a “big rort”. [6] The learned Magistrate did not accept this submission and found photographic evidence depicting the extent of the mould persuasive, commenting that: “… the photos would have justified you moving out”. The learned Magistrate further commented that as Mr Felton and Ms Maddox had a duty to mitigate their own losses, they should have moved out, rather than persist with unsatisfactory conditions that were causing damage to their possessions. [7] Whilst agreeing that Mr Felton and Ms Maddox had a legitimate claim for compensation, the learned Magistrate was left in the unfortunate position of having little evidence to substantiate the amounts claimed for mould damage. This is often a problem in landlord-tenant compensation matters: that the party seeking compensation provides little independent evidence about the quantum of the alleged loss, such that the QCAT Member or Adjudicator is left to make what is often described as a „global award‟ – meaning, usually, that the Member has simply done the best they can with the limited evidence. [8] Here, doing the best she could to strike a balance between not awarding Mr Felton and Ms Maddox “new for old”, and considering the claim for a corresponding rent reduction, the learned Magistrate struck a figure of $2,500.00. [9] Mr Felton and Ms Maddox now seek leave to appeal from this decision, on the basis that they believe they were denied natural justice as a consequence of the learned Magistrate‟s declining to view a DVD that depicts the state of the property at the time of entry into the lease. Leave to Appeal [10] Central to their claim that they were denied natural justice, Mr Felton and Ms Maddox point to the learned Magistrate‟s refusal to watch the DVD, and point out that there was a television and DVD player to the right of the learned Magistrate‟s bench. They further express a view that the learned Magistrate should have read and considered a series of maintenance reports that they presented to the Tribunal. [11] Mr Felton and Ms Maddox state that a proper application of natural justice would have resulted in a different decision, in so far as the magnitude of compensation they were awarded would be greater. With respect to Mr Felton and Ms Maddox, who have clearly experienced personal and financial distress as a result of the mould at the property, I do not accept they are correct on this point. [12] The evidence they desired the learned Magistrate to look at would only, as a matter of law, have assisted the tribunal in the exercise of deciding whether their claim for compensation was legitimate. Most cases, such as -- 3 of 6 -- 4 this, can be thought of in two distinct phases – (1) the liability phase; and (2) the quantum phase. [13] The evidence Mr Felton and Ms Maddox wished the Magistrate to view relates only to the first phase – and here, the tribunal accepted that the Respondent was liable for their loss. [14] I also note that s 95(2)(a) of the Queensland Civil and Administrative Tribunal Act 2009 contains broad powers permitting the tribunal to refuse to accept further evidence in relation to a matter if it accepts that there is already sufficient evidence about the matter before it. Here, the learned Magistrate had already made a finding in relation to “the liability phase” in Mr Felton and Ms Maddox‟s favour, and did not require further evidence on that point. [15] The difficulty the learned Magistrate faced is that Mr Felton and Ms Maddox presented her with little evidence about the extent, and the proper measure, of their losses at the time of the hearing. One way of doing this more effectively may have been, for example, to create a chart which indicated: 1.Name and description of item damaged 2.Original cost of item (attach receipt if available) 3.Date or approximate date item was purchased 4.Quotation or receipt indicating replacement cost The learned Magistrate had no evidence to consider in relation to items 1- 3, and was, therefore, compelled to make the global assessment mentioned above. In doing so she acted in accord with the requirements of the QCAT Act, which obliged her to act quickly and to make orders she considered to be fair and equitable: s 13(1). [16] The learned Magistrate also concluded that it would not be reasonable to award a rent reduction of $40.00, as claimed by Mr Felton and Ms Maddox, for the duration of the 6-month lease, finding that they should have moved out of the property when they realised it was not habitable. [17] Presumably, though no specific finding has been made, the learned Magistrate rejected the claim for food and petrol expenses on the basis that such costs would have been borne by Mr Felton and Ms Maddox regardless. I cannot see any arguable basis upon which such an approach is flawed at law. [18] In any event in assessing Mr Felton and Ms Maddox‟s application to appeal the present decision, they firstly require what is called leave to appeal from the appeal tribunal.1 1 Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(i). -- 4 of 6 -- 5 [19] 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 [20] 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 reasonable prospect of 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? [21] Having viewed all the evidence at hand, and for the reasons outlined above, I do not consider that there is a reasonably arguable case of error in the learned Magistrate‟s decision, nor that Mr Felton and Ms Maddox would have been entitled to further compensation had the DVD and maintenance reports been viewed by the learned Magistrate. Nor is there a question of public importance to be resolved; rather, this matter illustrates the very real difficulty that applicants for compensation face when they present limited information about the extent of their losses. Leave to Appeal is denied [22] As Mason J observed in Kioa v West:6 The expression “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations… [23] There has been no denial of procedural fairness in this matter of the sort contemplated in Kioa v West. Although the learned Magistrate limited the evidence (in the way permitted by s 95(1)(a) of the Queensland and Civil Administrative Tribunal Act 2009), she did not limit or constrain any 2 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 3 Cachia v Greech [2009] NSWCA 232 at [13]. 4 QUYD Pty Ltd v Marvass Pty Ltd (supra). 5 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, at 389; McIver Bulk Liquid Haulage Pty Ltd v Freehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580. 6 (1985) 159 CLR 550 at 585. -- 5 of 6 -- 6 evidence that would have aided Mr Felton and Ms Maddox in obtaining a higher amount of compensation. For this reason, there cannot be any denial of procedural fairness. [24] Leave to appeal must, in these circumstances, be refused. -- 6 of 6 --