Alikhan v Mian Prestige Real Estate

[2011] QCATA 122

CITATION: Alikhan v Mian Prestige Real Estate [2011] QCATA 122

PARTIES:	Mr Rizwan Alikhan
v
Mian Prestige Real Estate t/a Ray White Runaway Bay

APPLICATION NUMBER:            APL215-10               

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 MATTERS – where tenant claimed reimbursement for repairs to jetty – whether emergency repairs – where tenant claimed rent relief for loss of quiet enjoyment – where tenant claimed reimbursement for additional electricity costs

APPEAL – whether grounds for leave to appeal

Residential Tenancies and Rooming Accommodation Act 2008, s 214

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.

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

1. Mr Alikhan and his wife rented a property through Ray White Runaway Bay.  The tenancy was terminated in April 2010.  Both the lessor and Mr Alikhan brought applications in the tribunal claiming compensation which were heard by the learned Adjudicator on 13 August 2010.  In a written decision dated 9 September 2010, the learned Adjudicator rejected Mr Alikhan’s claims.

1. Mr Alikhan has filed an application for leave to appeal in respect of his claims for: compensation for repairs to the jetty; rent relief and reimbursement of electricity costs.

1. 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?

1. 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]

   [1]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 197 ALR 201 at 207, 208.

1. The learned Adjudicator has produced a detailed and careful decision.  It is apparent that she has weighed all of the evidence before her in coming to her decision.  While I understand that Mr Alikhan may disagree with her conclusions that view, in itself, is not sufficient to justify leave to appeal.  I am satisfied that the learned Adjudicator’s decision was capable of being supported by the evidence before her.

1. As to the jetty, I find the learned Adjudicator’s conclusion that the repairs were for Mr Alikhan’s benefit rather than to address the need for emergency repairs is supported by Mr Alikhan’s own evidence.[2] The inescapable conclusion from this evidence is that the owner provided a fixed timber jetty that, at least in the view of Mr Alikhan, was not suitable for his vessel so he effected “repairs” to make it suitable. This is a very different matter from effecting repairs that were necessary for the functioning of the jetty as it was constructed. As the learned Adjudicator has rightly pointed out, the repairs to the jetty cannot be considered “emergency” repairs within the meaning of s 214 of the Residential Tenancies and Rooming Accommodation Act 2008. I also note that, although he was entitled to do so, Mr Alikhan did not approach this tribunal for orders that the lessor attend to the repair of the jetty.

   [2]            Transcript, pages 23 - 25.

1. Mr Alikhan asserts the evidence shows that the lessor’s attendance to repairs was intermittent and incomplete.  The learned Adjudicator has formed a contrary view.  She expressly found that the lessor attended to necessary repairs in a timely way, given the difficulties that presented at the time.  Mr Alikhan seems to suggest that repairs should be addressed immediately.

1. The learned Adjudicator did accept that Mr Alikhan did incur increased electricity costs because the zoning feature of the air conditioning was not operating.  She was unable to quantify that additional cost, as the invoices produced to her did not compare “apples with apples”, and both covered periods during which Mr Alikhan says the air conditioning was not operating correctly.  In the absence of evidence to support or quantify the claim, the learned Adjudicator had no alternative but to disallow it.

1. There is no question of general importance which requires the decision of the appeal tribunal; I can find no reasonably arguable case and it is unlikely that Mr Alikhan would obtain further substantive relief on appeal; and I can find no evidence of a substantial injustice to Mr Alikhan if leave to appeal is not granted.

1. Leave to appeal should be refused.