Dowd v Metrocity Realty [2011] QCATA 128

CITATION: Dowd v Metrocity Realty [2011] QCATA 128 PARTIES: Mr Damien Dowd v Metrocity Realty APPLICATION NUMBER: APL326-10 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Kerrie O’Callaghan, Senior Member Peta Stilgoe, Member DELIVERED ON: 23 May 2011 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal refused. CATCHWORDS: TENANCY DISPUTE – where tenant left without notice and with arrears in rent – where lessor claimed compensation for damage to carpet and walls – where no entry condition report PROCEDURE – where applicant did not comply with Order of the tribunal – where no evidence that respondent had been given a copy of the application Queensland Civil and Administrative Tribunal Act 2009, s 154(3) Queensland Civil and Administrative Tribunal Rules 2009, rule 96 APPEARANCES and REPRESENTATION (if any): This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009. -- 1 of 4 -- 2 REASONS FOR DECISION Ms O’Callaghan [1] In this matter the Appeal Tribunal consisted of Ms Stilgoe, QCAT Member and me. I have had the benefit of reading her reasons in draft. I agree with her reasons, and her conclusions, and the order she proposes. Ms Stilgoe [2] Mr Dowd was a tenant in a property managed by Metrocity Realty. He had been a tenant for approximately three years but he left without notice and with his rent in arrears. Metrocity sought compensation for damaged carpets and walls in the amount of $4,148. At a hearing on 25 October 2010, the learned Adjudicator ordered that Mr Dowd pay Metrocity $2,000, being roughly 50% of the amount claimed for the each of the carpet and repairs. Mr Dowd has appealed that decision. He says: a) The learned Adjudicator failed to give reasons for his decision. b) There was not sufficient evidence to substantiate the learned Adjudicator’s decision that Mr Dowd breached his lease. c) Metrocity failed to enter into conciliation as required by the Residential Tenancy Authority. d) There was no entry report provided to the tribunal. e) Mr Dowd had been a tenant for three years and never received a notice of breach. [3] Because this is an appeal from the tribunal’s minor civil dispute jurisdiction, leave is necessary. 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? [4] However, Mr Dowd has another threshold difficulty with his application. On 25 November 2010, the President ordered Mr Dowd file an affidavit of service or form of acknowledgement from the other parties to the appeal, to establish compliance with rule 96 of the Queensland Civil and Administrative Rules 2009. There is no affidavit of service filed, nor has Metrocity acknowledged receipt of the notice of appeal. The only document that makes any reference to provision of documents to Metrocity is a facsimile from Bayside Tenancy Advice & Advocacy Service Inc dated 10 March 2011 which states: -- 2 of 4 -- 3 “Please find attached appeal submission for the consideration of the President. I have sent a copy to Metrocity, the other party to the claim.” [5] Rule 96 states that a party must give a copy of an application for leave to appeal to each other party to the proceeding. Whether or not Metrocity had received a copy of the application was clearly a matter that exercised his Honour’s mind in November. If a party wants to avail itself of the right to an appeal, it is reasonable to expect that the party will comply with the tribunal rules and any orders made by the tribunal. It is simply not sufficient to assert that the Metrocity has received a copy of submissions in March when there is no evidence that it was given a copy of the application when it was filed in November. Leave to appeal should be refused on the grounds of Mr Dowd’s non-compliance. [6] For completeness, I will briefly deal with Mr Dowd’s submissions. [7] 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 it. 1 The learned Adjudicator is required to determine the dispute based upon the evidence presented on the day. Metrocity, as applicant, had the onus of proving that the lessor was entitled to compensation. Mr Dowd had the opportunity to provide evidence to prove the contrary view. I have read the original file and the transcript of the hearing. I am satisfied that the evidence is capable of supporting the learned Adjudicator’s conclusions. [8] Metrocity produced a Notice of Unresolved Dispute at the hearing. So far as the tribunal is concerned, that document is evidence that the parties have attempted to resolve the dispute through discussion, albeit unsuccessfully. [9] The fact that there was no entry report, and that Mr Dowd was a tenant for three years without receiving a notice of breach, are simply additional facts. They are matters that Mr Dowd could have brought to the learned Adjudicator’s attention by written submissions or telling the learned Adjudicator at the hearing; he has not explained why he failed to do so. [10] It is true that a failure to give reasons can constitute a failure to give natural justice and, therefore, may be a ground for granting leave to appeal. If leave to appeal is granted, and the appeal is upheld, the appeal tribunal may set aside the learned Adjudicator’s decision and substitute its own: s 154(3) Queensland Civil and Administrative Tribunal Act 2009. [11] Given that: Mr Dowd conceded that he did damage the walls on entry and exit 2 ; he left with rent in arrears and without giving the necessary notice; and he did not deny that the carpet was damaged; I am not satisfied that 1 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 197 ALR 201 at 207, 208. 2 Transcript, page 5. -- 3 of 4 -- 4 the appeal tribunal would form a different view of the evidence and substitute a different decision. In those circumstances, the failure to give reasons did not cause Mr Dowd a substantial injustice and should not be the basis for granting leave to appeal. [12] Leave to appeal should be refused. -- 4 of 4 --