Ahmed v Professionals Boniface Group
[2012] QCATA 10
•17 January 2012
| CITATION: | Ahmed v Professionals Boniface Group [2012] QCATA 10 |
| PARTIES: | Javed Ahmed (Applicant) |
| v | |
| Professionals Boniface Group (Respondent) |
APPLICATION NUMBER: APL285-11
| MATTER TYPE: | Appeals |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Richard Oliver, Senior Member Michelle Howard, Member |
DELIVERED ON: 17 January 2012
DELIVERED AT: Brisbane
ORDERS MADE: 1. That leave to appeal is granted and the decision of 28 July 2011 is set aside;
2.That the Residential Tenancies Authority pay out to the parties the sum of $1,320 rental bond as follows:
Lessor: $1320
Tenant: Nil
3. That Javed Ahmed pay to the Professionals Boniface Group the sum of $1,319.15.
| CATCHWORDS: | MINOR CIVIL DISPUTE – application for leave to appeal – where reopening application granted – where orders made setting aside the reopening – where leave to appeal granted MINOR CIVIL DISPUTE – where reopening granted – rehearing Queensland Civil and Administrative Tribunal Act2009, ss 137, 139, 142, 146 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Cachia v Grech [2009] NSWCA 232 |
APPEARANCES and REPRESENTATION (if any):
This proceeding was heard on the papers in the absence of the parties pursuant to section 32(2) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Mr Oliver, Senior Member
In this matter the Appeal Tribunal consisted of Ms Howard, 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 Howard, Member
This proceeding has a complicated and unfortunate history.
On 2 June 2011, after a contested hearing, an adjudicator made orders that the Residential Tenancies Authority pay rental bond of $1,320 held in respect of premises that had been rented by Mr and Mrs Ahmed to the lessor and that the tenants pay a further amount of $1,319.15 to the lessor. The amounts awarded were for four days rent following a breaking of the lease by the Ahmeds of $207.15; cleaning fees of $60; letting fee of one week’s rent plus GST of $374; water costs allowed at $300; and replacement of a laminated bench top at $1,606. Filing fees of $92 were also allowed.
A representative of the lessor’s agent and Mr Ahmed were present and gave evidence and made submissions to the adjudicator. Mr Ahmed opposed all of the claims made for the lessor, although he acknowledged a break-lease agreement and that some water charges were due.
The hearing on 2 June 2011 was brief, lasting only some 19 minutes according to the transcript. Mr Ahmed acknowledged that the hole in the bench-top was not there when he moved into the premises. He made submissions about the age of the premises, which he claimed was some 30 years, and that he should not have to bear the entire cost of replacing the bench top. The lessor’s agent responded that the property was only 12 years old. Photographs were supplied by the lessor as well as copies of the entry and exit report. The exit condition report notes the hole in the kitchen bench top.
Mr Ahmed considered that the adjudicator moved forward too quickly and he had not had the opportunity to say everything that he wished to say about the bench top. Mr Ahmed said as follows:
‘But I have not had a chance to say that it’s not-there is a whole lot that is the age of the property, and the usage of it. You can’t put the whole of the damage to myself. Even I didn’t do the damage, but you can’t just, because this is 30 year old property, and I don’t have to pay for the 30 years use of that.. There is a way to calculate that. It’s in the legislation. It’s not that I have to pay the whole amount.’
The lessor’s agent gave evidence that the premises was 12 years old and that the bench top had been in perfect condition and that the only way to repair it was to replace it. The adjudicator accepted, as he was entitled to do, the evidence given on behalf of the lessor.
Subsequently on 8 June 2011, Mr Ahmed filed an application to reopen the proceeding supported by an affidavit sworn 21 June 2011. Orders were made on 29 June 2011 granting the reopening.
However, when the matter was relisted before an adjudicator on 28 July 2011, the order made reopening the matter was set aside. The adjudicator set aside the order granting a reopening essentially on the basis that if parties were present at the hearing, a proceeding cannot be reopened and the adjudicator who made the order granting the reopening had no ‘power or jurisdiction’ to do so. The adjudicator suggested that Mr Ahmed file an application for leave to appeal.
Mr Ahmed subsequently filed an application for leave to appeal the decision of 28 July 2011. The grounds of appeal are specified as ‘both the initial hearing and the reopening of the hearing were dismissed without giving the opportunity to present the evidence to support my case. Therefore natural justice has not been applied.’ He asks for orders that $1,136.36 be paid from the bond to the lessor’s agent for the costs for cleaning, reletting and water charges and for the balance be paid to him. Further he seeks orders for the claim for the bench top to be dismissed.
In support of the application, he filed an affidavit sworn 9 August 2011 setting out matters including that he was not given the opportunity at the hearing to present his evidence and that he has therefore been disadvantaged. He says that regarding the bench top, the exit condition report was not done until 17 February 2011, although he vacated the premises on the handover date of 9 February. He further says that the chip was not present when he vacated the premises and speculates that the damage must have been done in the intervening time. The affidavit filed in support of the reopening application was in similar terms.
Both parties were directed to file any written submissions to be relied upon. Neither has elected to do so.
I have read the application for leave to appeal or appeal and the affidavits sworn 21 June 2011 and 9 August 2011 by Mr Ahmed, as well as the material before the adjudicators on 2 June 2011 and 28 July 2011 and the transcripts of the proceedings for both days.
In his affidavit, Mr Ahmed makes it clear that he does not take issue with payment for the cleaning costs, the relet fee and advertising, the rent owing, and the water charges as allowed or the filing fee. His application is made in respect of the costs of replacing the laminated bench top.
The Legal Considerations
Leave is required to appeal a decision in a proceeding for a minor civil dispute under section 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act). If leave to appeal is granted, the intended appeal is on a question of law, namely whether Mr Ahmed was denied natural justice.
Leave to appeal will ordinarily be granted when a question of general importance upon which further argument and a decision of the Appeal Tribunal is to public advantage;[1] there is a reasonably arguable case that the primary decision-maker made an error[2] and there are reasonable prospects that the applicant would be granted orders in its favour;[3] or to correct a substantial injustice to the applicant caused by error.[4]
[1]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578 and 580.
[2] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[3] Cachia v Grech [2009] NSWCA 232, [13].
[4] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
In deciding an appeal on a question of law, the appeal tribunal may confirm or amend the decision; set it aside and substitute its own decision; or set it aside and return the matter to the tribunal which made the decision for reconsideration; or make any other order it considers appropriate.[5]
[5] QCAT Act, section 146.
The tribunal may grant a reopening application if a reopening ground exists in two possible circumstances: when a party did not appear at the hearing and had reasonable excuse for not attending;[6] or a party would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arise and that evidence was not reasonably available when the proceeding was first heard and decided.[7]
[6] QCAT Act, section 137.
[7] QCAT Act, section 137.
The tribunal’s decision about a reopening application is final and cannot be challenged, appealed or set aside.[8]
Discussion and Decision
[8] QCAT Act, section 139.
The only item in contention is the cost of replacing the bench top.
Mr Ahmed grounds his application for leave to appeal and appeal on an alleged denial of natural justice because he was not allowed to give his evidence to the tribunal.
In relation to the hearing on 28 July 2011, which lasted a very brief period although the transcript does not reveal the duration in minutes, the adjudicator essentially checked that Mr Ahmed had been present at the 2 June hearing and once satisfied that he was, told the parties that the case could not be reopened and that an application for leave to appeal was the appropriate course, and proceeded to make order setting aside the order granting a reopening. During the course of the proceeding, Mr Ahmed told the adjudicator that he had not had the time to explain from his side why he should not have to pay the ‘$1300’.
Mr Ahmed does not appeal on the grounds that the adjudicator erred in deciding to set aside the grant of the reopening. However, in my view, the learned adjudicator did do so. The adjudicator had no power to set aside the order granting the reopening. Therefore, I consider the adjudicator made an error of law and that leave to appeal the decision of 28 July 2011 should be granted and the decision set aside.
That being so, I turn to the reopening. When the tribunal decides that a proceeding should be reopened, the tribunal must hear and decide the issues again by way of a fresh hearing on the merits. In my view, it is appropriate having regard to section 146 of the QCAT Act, for this Appeal Tribunal having granted leave to appeal, to hear the reopening and make orders as it may consider appropriate. This is also consistent with the tribunal’s obligation to deal with matters in a way that is fair, just and quick.[9]
[9] QCAT Act, section 3(b).
Although the matter must be reheard, I am entitled to consider the evidence before the tribunal on 2 June 2011 as well as the evidence later presented by Mr Ahmed. Mr Ahmed’s evidence set out in his affidavits contradicts his evidence and submissions made at the hearing on 2 June 2011.
On 2 June, he acknowledged that the hole in the bench top was not there when they moved in to the premises. He did make submissions that he should not have to pay the entire amount because of the age of the premises. At no stage did he suggest that it was not there when he vacated the premises.
Contrary to this, the affidavits of Mr Ahmed state that the chip was not present when he vacated the premises on 9 February 2011. He speculates that it was done between the vacation of the premises and the final inspection on 17 February 2011, which he submits was contrary to the requirements that the inspection be done within three days.
It is agreed that the hole was not there when the Ahmed’s moved in to the premises. Given the inconsistency in Mr Ahmed’s evidence on 2 June 2011 and in his affidavit material, I prefer the evidence of the lessor’s agent and accept that the hole was observed at the time of the vacation of the premises as noted on the exit condition report.
Mr Ahmed submitted on 2 June 2011 that the tenants should not be responsible for the entire cost given the age of the premises which he suggested was about 30 years. The standard tenancy agreement[10] contains a condition that at the end of a tenancy, as far as possible premises must be left in the same condition they were in at the start of the tenancy, apart from fair wear and tear. The evidence from the lessor’s agent was that the premises were only 12 years old, that the bench top was in perfect condition at the commencement of the tenancy, and that the only way to have it repaired was to replace it. I accept that evidence. I do not consider that a hole in the bench top could be described as fair wear and tear. I accept that the only option was to replace it.
[10]Residential Tenancies and Rooming and Accommodation Regulation 2009, s 6, Schedule 1, clause 37; see also Residential Tenancies and Rooming and Accommodation Act 2008, s 188.
Under sections 137 and 429 of the Residential Tenancies and Rooming and Accommodation Act 2008, the tribunal may make orders about the payment of a rental bond and disputes generally between a lessor and tenant respectively.
Given Mr Ahmed’s concessions about the items other than the bench top, I am satisfied that orders should be made in similar terms to those made by the adjudicator on 2 June 2011. I make orders accordingly.
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