Bullmore v Worongary Realty Pty Ltd [2010] QCATA 13

CITATION: Bullmore v Worongary Realty Pty Ltd [2010] QCATA 13 PARTIES: Nigel Bullmore (Appellant) and Worongary Realty Pty Ltd (Respondent) APPLICATION NUMBER: APL032-10 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: President DELIVERED ON: 5 May 2010 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused 2. The stay of the adjudicator’s decision ordered on 17 March 2010 is lifted as and from 14 days from the date of this decision, whereafter a warrant for possession will issue and be operative for a period of 14 days. CATCHWORDS : RESIDENTIAL TENANCIES – TERMINATION ORDER – whether findings of credit were against weight of evidence Queensland Civil and Administrative Tribunal Act 2009, s 142. APPEARANCES and REPRESENTATION (if any): APPLICANT : RESPONDENT: -- 1 of 4 -- 2 REASONS FOR DECISION [1] In June 2009 Mr Bullmore and Mrs Rhoda Bullmore rented residential premises at 368 San Fernando Drive, Worongary from Worongary Realty Pty Ltd (trading as LJ Hooker Mudgeeraba), who was the agent for the owner. [2] By the end of 2009 relations had deteriorated and Mr and Mrs Bullmore brought proceedings by way of a minor civil dispute (residential tenancy) against the agent, claiming compensation for their inability to use a tennis court and swimming pool on the premises during the period of the tenancy and also because, they alleged, the area of land they had rented with the residential premises – which they say they were told was 3.5 acres – was, in fact, less than two acres. They claimed compensation totalling $7,125. [3] By separate proceedings the agents sought arrears of rent of $5,914, another amount relating to alleged excess water usage, and a claim on behalf of the owner for interest under his mortgage, in the total sum of $6,270. [4] The proceedings were heard together by a QCAT adjudicator at Southport on 8 March 2010. After a lengthy hearing recorded in 50 pages of transcript the learned adjudicator rejected Mr and Mrs Bullmore’s claims, found that they were in breach of the tenancy agreement because of their non-payment of rent; and, ordered that they pay the sum of $6,003.88 for rental arrears and excess water charges. It was also ordered that the tenancy be terminated, and that a warrant for possession issue immediately. The other claims by the agent were refused. [5] Mr Bullmore (but not Mrs Bullmore) seeks leave to appeal that decision. Leave is necessary: Queensland Civil and Administrative Tribunal Act 2009, s 142. He also sought a stay pending determination of the application, and that stay was granted on 17 March 2010, in respect of the order for termination and the warrant for possession, until 14 days after determination of the application for leave to appeal. [6] By a further order of 17 March 2010 it was directed that the application for leave be determined by written submissions according to a timetable, and both parties have delivered and exchanged submissions. [7] Mr Bullmore’s submissions largely reprise evidence he gave before the learned adjudicator which, as her reasons disclose, she rejected. Her decision, which is comprehensive, may be relevantly summarised with regard to the matters about which Mr Bullmore complains: (a) Mr Bullmore’s evidence that he had been complaining that the pool was unusable since the tenancy commenced in June 2009 was rejected. The reasons make it clear that, in the absence of evidence that the tenants had previously made any formal complaint regarding the issue of the pool -- 2 of 4 -- 3 (in circumstances where the tenants, whom she described as intelligent and articulate people who were well aware of their rights and obligations under the Residential Tenancies and Rooming Accommodation Act, would have taken positive steps to pursue their rights by, for example, issuing notices to remedy under that legislation), she was not persuaded there had been any earlier complaint. The adjudicator found that the agents and owner, upon receiving a letter from the tenants in mid-December 2009, acted promptly to repair the pool; (b) as to the tennis court, the learned adjudicator again found that upon receiving a complaint the owner acted promptly to replace a net and that, otherwise, the tenants had agreed to remove weeds from the court, and control those weeds, on the basis he would be reimbursed for the cost of weed killer. That finding 1 involved accepting the evidence of the real estate agent and the owner, in preference to that of Mr Bullmore about any problems associated with the utility of the court; (c) Because the tenancy agreement does not refer to any particular area of land, and because the learned adjudicator preferred the real estate agent’s evidence that at no time was any representation made about the area, she also rejected the tenant’s claims on that issue. [8] The learned adjudicator also observed that she had no independent or expert evidence about the proper measure of compensation. In his submissions in support of his application for leave to appeal Mr Bullmore attached a letter from another real estate agent asserting that, on the basis of his experience, the rental value of a pool and a tennis court on a typical semi-rural Gold Coast property would approximate $50 per week. That evidence was not presented to the adjudicator. In any event, in light of her findings about credit, based upon her preference for the evidence of the owner and the agent, it was unnecessary for her to proceed further and make findings about the true worth of the tenant’s claim for compensation. [9] The learned adjudicator had the advantage of hearing, and seeing, evidence under oath from both Mr Bullmore and the agent. Her findings about the central issues involving questions of credit are explained in her reasons, and are logically supported by documents which she found to be corroborative. Her finding that Mr Bullmore was a person likely to be aware of, and to take action to protect, his rights is unsurprising in light of his lengthy and detailed submissions to, and evidence before, the adjudicator. Nothing in the transcript, or the reasons, suggests her findings of credit were against the weight of evidence, unreasonable, or mistaken. 1 Adjudicator’s reasons, p 1-10 -- 3 of 4 -- 4 [10] The applicant has made no attempt to identify any question of law requiring consideration in the appeal process. There is no matter of importance, or public interest arising in the proceeding warranting the grant of leave. The decision below contains careful, well-explained findings from the learned adjudicator. Leave to appeal must be refused: the original decision of the learned adjudicator is affirmed; and, in accordance with the order of 17 March 2010 the stay is lifted as and from 14 days from the date of this judgment, whereafter a warrant for possession will issue and be operative for a period of 14 days. -- 4 of 4 --