Alcantara & Fernandez v Adams

[2014] QCATA 202

CITATION: Alcantara & Fernandez v Adams [2014] QCATA 202

PARTIES:	David Garcia Alcantara Arantzazu Gutierrez Fernandez (Applicants/Appellants)
v
Cameron Dominic Adams (Respondent)

APPLICATION NUMBER: APL220-14

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Stilgoe, OAM

DELIVERED ON: 28 July 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.    Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where damage to tenancy – where damaged items eight years old – whether tribunal sufficiently discounted replacement costs – whether grounds for leave to appeal

PROCEDURE – INTERPRETERS – where English not the tenants’ first language – where no interpreter at hearing – where no application for interpreter – whether tribunal took reasonable steps to ensure tenants understood proceeding given their linguistic background

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 29(1)(c)

Dearman v Dearman (1908) 7 CLR 549
House v The King (1936) 55 CLR 499
Fox v Percy (2003) 214 CLR 118
Pickering v McArthur [2005] QCA 294
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
Chambers v Jobling (1986) 7 NSWLR 1
Cavric Pty Ltd t/a Cavalier Homes Mackay v Cameron [2010] QCATA 90

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. Mr Alcantara and Ms Fernandez rented Mr Adams’ house.  At the end of the tenancy, the bond was returned to the tenants.  Some time later, Mr Adams filed an application for compensation, relating to damage to the tenancy.  Of a possible claim of $5,955, the tribunal ordered the tenants pay $3,463.

2. The tenants want to appeal that decision on three grounds. Firstly, they say that an interpreter should have been available to them for the hearing. Secondly, they say that the learned Adjudicator erred in relying on the agent’s evidence that the exit inspection was conducted within three days of the tenants’ vacating the tenancy.  Lastly, they say that the learned Adjudicator erred in his calculation of the lessor’s loss.

1. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1]  Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]

   [1]QCAT Act s 142(3)(a)(i).

   [2]Pickering v McArthur [2005] QCA 294 at [3] per Keane JA.

1. The tenants submit that the absence of an interpreter resulted in Ms Fernandez not giving evidence of a conversation she had with the lessor’s agent, Ms Van Zyl and Mr Alcantara not providing important documents to the tribunal.

2. Mr Alcantara notes that, in Part D of his application, Mr Adams stated that an interpreter was not required.  The tribunal was entitled to take notice of that unless it came to the learned Adjudicator’s attention that an interpreter was desirable.

3. I have listened to the transcript.  While Mr Alcantara spoke with an accent, there was nothing to indicate that he did not understand the proceeding. He answered the learned Adjudicator’s questions appropriately and made submissions about the lessor’s claim.  There is nothing in the evidence that would have alerted the learned Adjudicator to the need for an interpreter.

4. Mr Alcantara submitted a copy of the results from an English language testing system as part of his application for leave to appeal.  He scored 7.5 overall and, importantly, 7.5 in listening skills.  A result of 7 is described as a good user: ‘Has full operational command of the language with only occasional unsystematic inaccuracies and inappropriacies (sic). Misunderstandings may occur in unfamiliar situations. Handles complex detailed argumentation well.’  A result of 8 is described as a very good user: ‘Has fully operational command of the language with only occasional unsystematic inaccuracies and inappropriaces (sic). Misunderstandings may occur in unfamiliar situations. Handles complex detailed argumentation well.’ That report does not support a finding that Mr Alcantara could not understand, or engage in, the hearing process.

5. Ms Fernandez did not appear at the hearing.  Her English skills are not as well developed as Mr Alcantara’s skills.  Her listening skills are rated as a ‘modest user’.  The tenants submit that Ms Fernandez did not attend the hearing because there was no interpreter.  I do not accept that submission.  There may have been other reasons. The transcript shows that the couple has young children[3].

   [3]Transcript page 1-11, lines 5 – 7.

6. The tribunal’s obligation to take reasonable steps to ensure that parties understand the proceeding, having regard to a party’s linguistic background[4] has its limits.  The tenants could have requested an interpreter be available for the hearing.  They could have asked the learned Adjudicator to adjourn the hearing until an interpreter was available.  In the absence of any obvious signs that Mr Alcantara did not understand the proceeding, and that was unlikely, the learned Adjudicator was entitled to assume Mr Alcantara did understand the proceeding.

   [4]QCAT Act s 29(1)(c).

1. The tenants have submitted a copy of the exit condition report with their submissions on appeal.  The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined.  Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests.  Could the tenants have obtained the evidence with reasonable diligence for use at the trial?  If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?[5]

   [5]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.

1. It is implicit in the tenants’ submissions that Mr Alcantara had a copy of the exit condition report available at the hearing.  The learned Adjudicator asked if there was an exit condition report available[6].  Ms Van Zyl could not produce one.  Mr Alcantara did not volunteer an exit condition report. Shortly before giving his reasons for decision, the learned Adjudicator asked Mr Alcantara whether there was anything else he wanted to say[7]. Again, Mr Alcantara did not volunteer that he had a copy of the exit condition report.  The report was available at the time of the proceeding and the tenants have not satisfactorily explained why it was not produced.

   [6]Transcript page 1-4, line 43.

   [7]Transcript page 1-17, lines 27 – 28.

2. The exit condition report submitted to the appeal tribunal is of limited value.  It has not been signed by the lessor or the agent even though there are comments in the lessor’s column.  Oddly, the lessor’s signature block has a date of 7 September 2012.  That date is about a month before the tenants entered the lease.  If, as the tribunal has seen in other matters, the entry condition report has been cut and pasted into the exit condition report, it has no value to the tribunal.  The exit condition report is not credible evidence of anything.  The fresh evidence should not be allowed and the appeal tribunal should decide the application for leave to appeal based on the evidence before the learned Adjudicator.

1. The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[8]  An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[9] 

   [8]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.

   [9]Chambers v Jobling (1986) 7 NSWLR 1 at 10.

1. Ms Van Zyl told the learned Adjudicator that she conducted an inspection three days after the tenants vacated[10].  Although the tenants disputed that evidence, the learned Adjudicator appeared to accept that evidence[11].  The evidence can support the learned Adjudicator’s findings and I can see no compelling reason to come to a different view.  The evidence can also support the learned Adjudicator’s findings that damage occurred during the tenancy.

   [10]Transcript page 1-6, lines 39 – 41.

   [11]Transcript page 1-17, lines 40 – 41.

1. The tenants dispute the amount the learned Adjudicator awarded for that damage.  Both the cook top and the oven were damaged through over-cleaning.  Both appliances were eight years old.  The learned Adjudicator accepted that the lessor was not entitled to payment of ‘new for old’ and quantified the lessor’s loss at 40% for the cook top and 50% for the oven. The tenants submit that, having regard to the Australian Taxation Office depreciation schedules, a more appropriate assessment was 30%.  The tenants also argued that the learned Adjudicator should have assessed the loss on the original purchase price, not the replacement price.

1. The appeals tribunal has stated that the proper approach to quantifying betterment is to look at the loss and then determine whether it is appropriate to reduce the damages by any benefit obtained[12].  The lessor’s loss is not the original purchase price, but the money he will have to spend to replace the cook top and stove.  The learned Adjudicator was not in error in assessing loss on the replacement cost, rather than the original purchase price.

   [12]Cavric Pty Ltd t/a Cavalier Homes Mackay v Cameron [2010] QCATA 90 at [35].

1. The tribunal may use the Australian Taxation Office depreciation schedules as a guide to what reduction should be made for betterment but, ultimately, it is a matter for the learned Adjudicator’s discretion. The Appeal Tribunal will not interfere with the exercise of discretion unless it can be shown that the learned Adjudicator acted upon a wrong principle, or made mistakes of fact which affected the decision, or was influenced by irrelevant matters[13].  Just because the Appeal Tribunal might have exercised the discretion differently, that is not a basis for changing the decision: it must be shown that the decision is plainly unjust or unreasonable, and involved a clear misapplication of the discretion[14].

   [13]House v The King (1936) 55 CLR 499, at 504.

   [14]Lovell v Lovell (1950) 81 CLR 513.

1. The learned Adjudicator’s decision was not plainly unjust or unreasonable and he did not misapply his discretion.  There is no basis to grant leave to appeal.  There is no reasonably arguable case that the learned Adjudicator was in error.  Leave to appeal should be refused.