Bates v Horsnell [2011] QCATA 329

CITATION: Bates v Horsnell [2011] QCATA 329 PARTIES: Javvab Bates (Applicant/Appellant) v Trevor Horsnell Lauren Horsnell (Respondents) APPLICATION NUMBER: APL331-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President DELIVERED ON: 25 November 2011 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RENTAL TENANCY – Where applicant rented premises from the respondent – Where the respondent claimed for cleaning fees outstanding rent and repair costs – Where applicant cross claimed for failure to maintain premises in good tenantable condition – Where Magistrate awarded the respondent some of the claim sought – Where Magistrate dismissed the applicant’s cross claim – Where applicant seeks leave to appeal that decision – Whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549, applied Fox v Percy (2003) 214 CLR 118, applied 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). -- 1 of 4 -- 2 REASONS FOR DECISION [1] Ms Bates rented residential premises at Mount Isa from Mr and Mrs Horsnell. She vacated the premises in March 2011 and, later, they brought proceedings in QCAT’s Minor Civil Disputes jurisdiction claiming $1,658.92 for outstanding rent, cleaning fees and repair costs. [2] Ms Bates filed a cross-application disputing the Horsnells’ claim and claiming, for herself, the sum of $5,000 ‘… by way of compensation for personal injury’ caused, it is alleged, by the Horsnells’ failure ‘… to ensure the premises were in good tenantable state of repair upon commencement of the lease’. [3] The matter was heard by an acting Magistrate, sitting as a QCAT Member, in Mount Isa on 7 July 2011. The learned Magistrate adjourned his decision and delivered it, with reasons, on 28 July 2011. The QCAT Appeal Tribunal directed that Ms Bates’ application for leave to appeal would be determined on the papers, with written submissions from both parties, which they have now filed. [4] The learned Magistrate rejected a number of the Horsnells’ claims – for carpet cleaning; pool chemicals; repairs to screens on doors; and, for a letting fee. He allowed two claims – outstanding rent of $488.57, and two- thirds of the replacement cost of a blind, in the sum of $178.57. He also awarded the Horsnells $30 for part, but not all, of their filing fees. The ultimate order was that Ms Bates must pay the Horsnells $697.15. [5] The learned acting Magistrate also dismissed Ms Bates’ counter application for $5,000 for compensation for personal injuries, on the basis that it is a claim for unliquidated damages and is outside QCAT’s powers in its Minor Civil Disputes jurisdiction, and should be brought under the Personal Injuries Proceedings Act 2002. [6] Ms Bates’ submissions contend that the decision involves substantial miscarriages of justice because, in summary, the acting Magistrate wrongly relied on the evidence of the Horsnells about the material of which the blind was made; and, because he wrongly found that the Horsnells and their letting agent had acted reasonably in their attempts to relet the premises. In effect, Ms Bates alleges the Horsnells did not take all reasonable and necessary steps to mitigate their damages for lost rent in the period before they found a new tenant. [7] Ms Bates’ submissions helpfully address the principles operating in this Appeal Tribunal when questions about leave to appeal arise. Leave 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? [8] Ms Bates specifically contends that there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage: namely, whether the learned -- 2 of 4 -- 3 acting Magistrate erred in the way in which he applied, and reached his decision about, the test as to whether the Horsnells had proved their claim on the balance of probabilities. [9] It is said, as to the blind, that the Member was wrong to accept the evidence of a witness, Ms Leonard, that the blind was made of aluminium when Ms Bates’ evidence was that it was made of plastic. This is, however, simply a finding of fact based upon the choice the learned acting Magistrate was obliged to make between the conflicting evidence of these two witnesses. He explained in his Reasons that he accepted and preferred Ms Leonard’s evidence because she had visited the premises frequently and was familiar with their construction, and the blind and its condition. The fact that Ms Bates contended it was constructed of different material and gave evidence to that effect is not, in itself, persuasive that she was correct. The learned acting Magistrate discharged, with respect, his responsibility: to consider the evidence and the conflict in it, to make a finding based upon his choice between the two conflicting versions, and to explain his reasons for that choice. [10] 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 it1. That was the case here. Simply because Ms Bates believes her evidence was more persuasive does not make the learned acting Magistrate’s decision wrong. [11] The same conclusion applies to the submission about outstanding rent. In his reasons the Magistrate referred to Ms Bates’ submission that there had been a serious failure on the part of the Horsnells, and the real estate agents, to have the house relet as soon as possible, given the nature of the rental market in Mount Isa. Again, the Magistrate explained his finding in the face of this conflicting evidence, and his reasons for it – he said the actions of the other parties were reasonable, taking into account the need to ensure the suitability of prospective tenants and all the prevailing circumstances. That finding was, with respect, reasonably open to him in the face of the evidence and, of course, on the balance of probabilities. [12] Ms Bates’ submissions also attack the award of $30 to the Horsnells for costs. It appears their actual filing fee was $92. Their original claim was for $1,658, but they only recovered about $670 – i.e. something slightly more than one-third of their total claim. To award them an amount of about a third of the filing fee was, in the circumstances, a decision which was appropriately commensurate with the findings made in the action itself. [13] It is not entirely clear if Ms Bates seeks leave to appeal the decision dismissing her cross-claim for damages for personal injuries. At page 8 of them she says she seeks orders that her appeal be allowed; that it be held that she does not owe any amount to the Horsnells; and, that they pay the cost of the appeal, but does not appear to seek any different decision in 1 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. -- 3 of 4 -- 4 respect of the learned acting Magistrate’s dismissal of her claim for damages for personal injuries. [14] Elsewhere, however, in her submissions at pages 3 and 4 she refers to other alleged breaches of the lease and says that these would ‘… mandate a finding in the appellant’s favour due to all of the breaches of the lease that led to serious personal injury …’. [15] The Personal Injuries Proceedings Act 2002 applies in relation to all personal injuries arising out of an incident which happened before, on or after 18 June 2002: s 6. Claims may be brought in a court, with jurisdiction to hear them. [16] In the jurisdiction in which the learned acting Magistrate was sitting, the only claims which may be brought are those falling within the definition of ‘minor civil disputes’ in the third Schedule to the QCAT Act 2009. Under that definition, claims are limited to debts or liquidated demands, matters arising out of contracts between consumers and traders; damage to property arising out of the use of a vehicle, or defects in them; and, for tenancy matters or dividing fence disputes. [17] Tenancy matters are those arising under the Residential Tenancies and Room and Accommodation Act 2008. Under that Act, a tenant may apply for termination for injury caused to the applicant (s 312) and termination orders can be made if the Tribunal is satisfied that injury has occurred (s 344(1)); but, otherwise, nothing in that legislation or the QCAT Act appears to invest the Tribunal with the power, in its Minor Civil Disputes jurisdiction, to award damages for personal injury or give the Tribunal power, in that jurisdiction, to hear and determine claims to which the Personal Injuries Proceedings Act 2002 applies. [18] Ms Bates has not been able to point to any error on the part of the learned acting Magistrate warranting a grant of leave to appeal, and her application must be refused. -- 4 of 4 --