Bertwistle & Anor v Total Property Management Pty Ltd [2011] QCATA 86

CITATION: Bertwistle and MacDonald v Total Property Management Pty Ltd [2011] QCATA 86 PARTIES: Ms Noela Bertwistle and Bruce MacDonald (Applicants/Appellants) v Total Property Management Pty Ltd ABN: 361 048 511 76 (Respondent) APPLICATION NUMBER: APL245-10 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member DELIVERED ON: 20 April 2011 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal is refused. CATCHWORDS: Minor Civil Dispute – findings of fact – whether findings of fact open on the evidence – where no error identified Queensland Civil and Administrative Tribunal Act 2009, s 142(3) Fox v Percy (2003) 197 ALR 201 Cachia v Grech [2009] NSWCA 232 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 APPEARANCES and REPRESENTATION (if any): This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). -- 1 of 3 -- 2 REASONS FOR DECISION [1] The applicants were tenants in a rented property at 87 Severnlea Street, Murarrie. They entered into a residential tenancy agreement for a period of 12 months from 10 September 2009 to 10 September 2010. The applicants vacated the property on 13 August 2010. It is contended by the applicants that the reason they left was because the lessor did not ensure they had quiet enjoyment of the property. [2] As the tenancy was coming to an end, and the relationship between the applicants and the lessor’s agent had broken down, the respondent gave to the applicants a Notice to Leave on 8 July 2010 to ensure they vacated the property at the end of the tenancy term. [3] As a consequence of vacating the property earlier, the lessor’s agent brought an application in the Tribunal to recover outstanding rent and the cost of cleaning. The application was heard before a Tribunal Adjudicator on 27 September 2010. The issue for determination was whether the applicants were responsible for the extra month’s rent, and whether they should pay the cleaning charges of $289.00. [4] The applicant’s contended that they had an entitlement to leave the property early because the lessor failed to remedy the Notices to Remedy Breach given by them to the lessor on 17 June 2010. [5] The learned Adjudicator took evidence from both the lessor’s agent Mr Hamilton, and Ms Bertwistle on behalf of the applicants. At the conclusion of the hearing, he gave reasons for the orders made. In doing so, he concluded that the applicants did not have a right to terminate because the matters raised in the Notices to Remedy Breach were not urgent.1 He also found that the agent’s conduct in issuing the Notice to Leave in response to the applicants’ Notices to Remedy Breach were not retaliatory. He gave reasons for those findings. He concluded, that the owner’s agent had made reasonable efforts and taken reasonable steps to have the defects remedied but was frustrated by the conduct of the applicants. These are findings of fact made by the learned Adjudicator, which will not be easily disturbed on an appeal unless some demonstrable error can be identified in the reasoning or on the evidence. It is not for this Appeal Tribunal to determine where the truth lies between the competing versions of events2. That is the function of the primary decision-maker. This is not an opportunity to re-agitate those matters that were considered by the learned Adjudicator. [6] For leave to appeal to be granted, the applicants must identify some error on the part of the primary decision-maker. Is there a reasonable prospect that the applicant will obtain substantive relief?3 Is leave necessary to 1 Transcript page 22. 2 Fox v Percy (2003) 197 ALR 201 at 207, 208. 3 Cachia v Grech [2009] NSWCA 232 at [13]. -- 2 of 3 -- 3 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 [7] In the submissions filed in support of the application for leave to appeal the applicants sought to raise factual issues about the maintenance of the rented property. Some of these allegations were put to the learned Adjudicator and some are new. The submissions also challenge some of the evidence of Mr Hamilton which again, was considered by the learned Adjudicator. It is also argued that at the time the respondent issued the Notice to Leave the applicants were in discussions with the Residential Tenancy Authority about the alleged breaches and upon receiving the Notice of Leave they decided not to stay in the property. [8] These submissions do not change the findings of fact by the learned Adjudicator. He had evidence before him upon which he could make a decision and that decision was open on that evidence. Nothing in the further submissions put to the Appeal Tribunal satisfies this Tribunal that the evidence was so compelling that the learned Adjudicator could not come to the decision that he did. [9] As the applicants have been unable to identify any error on the part of the learned Adjudicator, nor is any apparent, leave to appeal must be refused. 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 Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580. -- 3 of 3 --