Andersen v Stewart
[2014] QCATA 310
•4 November 2014
| CITATION: | Andersen v Stewart [2014] QCATA 310 |
| PARTIES: | Jean Anderson (Applicant/Appellant) |
| v | |
| Brett Stewart Jasmine Stewart (Respondents) |
| APPLICATION NUMBER: | APL397-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM |
| DELIVERED ON: | 4 November 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal granted. 2. Appeal allowed. 3. Brett Stewart and Jasmine Stewart shall pay Jean Andersen $1,000 within 28 days of the date of this order. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where claim for compensation – whether evidence supported tribunal’s decision – whether grounds for leave to appeal Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 188, 218 Dearman v Dearman (1908) 7 CLR 549 |
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
Ms Andersen owns a house which Mr and Ms Stewart, with their three young children, rented for 4½ years. At the end of the tenancy, Ms Andersen claimed $4,373.90 compensation for cleaning and repairs. Two Justices of the Peace, sitting in the minor civil disputes jurisdiction of the tribunal, found that Ms Andersen was entitled to $445.
Ms Andersen wants to appeal that decision. She nominates four broad headings. She says that Mr Stewart lied under oath. She says that Mr and Ms Stewart breached the tenancy agreement and the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). She says the learned Justices failed to provide a fair process. Ms Andersen also points to a number of errors of fact in the learned Justices’ findings.
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].
Mr Stewart’s evidence
Ms Andersen says Mr Stewart lied under oath because he suggested he was a plumber, that he denied he put up a shelf and then later agreed that he had done so, and that he lied about the damage to the water pipe.
Whether or not Mr Stewart was a plumber seemed to have no impact on the learned Justices’ decision. They declined to order compensation for the holes made by the shelf because Ms Andersen had only a verbal quote. The learned Justices acknowledged a conflict of evidence about the water pipe but they were not satisfied with Ms Andersen’s explanation[3]. It seems that Mr Stewart’s explanation was not relevant to their decision.
[3]Transcript page 1-74, lines 24 – 26.
Breach of the tenancy agreement
Ms Andersen says that Mr and Ms Stewart breached the tenancy agreement by having a cat in the house. That seems to be correct, but the fact of a breach does not give rise to compensation unless Ms Andersen can prove loss or damage.
Ms Andersen states, in a shorthand way, ‘Emergency Repairs Jean Andersen’. An examination of Ms Andersen’s detailed submissions reveals that to be a submission in relation to the split water tank. Ms Andersen submits that Mr and Ms Stewart were not entitled to do emergency repairs and should have reported the split to her.
Tenants may arrange for emergency repairs to be made[4]. It is true that there are procedures to follow but the procedures are directed to the cost of repairs. Mr and Ms Stewart told the tribunal they did tell Ms Andersen about some of the damage[5] and that allowed her to get it fixed. They were not claiming the cost of some repairs they undertook and there is no suggestion that Ms Andersen’s repair costs were increased by the tenants’ failure, if any, to notify her of damage. This is not a basis for leave to appeal
[4]Residential Tenancies and Rooming Accommodation Act s 218.
[5]Transcript page 1-53, lines 18 – 22.
Breach of the Residential Tenancies and Rooming Accommodation Act
I have dealt with Ms Andersen’s submission that Mr and Ms Stewart did not report damage.
Ms Andersen states that, in breach of the Residential Tenancies and Rooming Accommodation Act, Mr and Ms Stewart did not seek her permission to remove existing cabling and install ‘subscription TV’ or to install a cat flap.
Mr Stewart told the learned Justices that there was already a cat flap in the door[6] and I cannot find any place in the transcript where Ms Andersen denies that assertion.
[6]Transcript page 1-31, lines 7 – 8.
Mr and Ms Stewart did not say that they installed ‘subscription TV’. They told the learned Justices that they installed a digital TV aerial[7]. Ms Andersen has a working TV aerial, at the tenants’ cost. It was clear from the transcript[8] that Ms Andersen was confused about the aerial and its purpose. She has TV cabling that works. It seems that the existing cabling is redundant. Ms Andersen has not pointed to any loss.
[7]Transcript page 1-39, lines 44 – 46.
[8]Transcript page 1-56, line 1 to page 1-57, line 13.
Tribunal’s failure to provide fair process
Ms Andersen says the learned Justices did not apply consistency during the hearing because they said, on occasion, that they were not interested in how damage occurred.
The Residential Tenancies and Rooming Accommodation Act sets out a tenant’s obligations[9]. A tenant must keep the premises and inclusion clean. A tenant must not maliciously damage, or allow another person to maliciously damage, the premises or inclusions. At the end of the tenancy, the tenant must leave the premises and inclusions, as far as possible, in the same condition they were in at the start of the tenancy, fair wear and tear excepted.
[9]Residential Tenancies and Rooming Accommodation Act s 188.
If the learned Justices found that Mr and Ms Stewart did not maliciously damage the house, that they left the house in the same condition, as far as possible, as it was in when they first took the house and that any damage was fair wear and tear, then the learned Justices were right in their decision that the cause of the damage was irrelevant.
Mr and Ms Stewart sent information to the tribunal by email the night before the hearing. They did not send a copy to Ms Andersen. The learned Justices did not refer to that material in any detail during the course of the hearing and their reasons for decision do not reflect any reliance on that material. But, before the learned Justices handed down their decision, Ms Andersen asked for a copy of the material[10]. She was given time to read the material[11] and an opportunity to ask further questions[12]. Mr and Ms Stewart correctly point out that a respondent to a residential tenancy dispute is not required to file material prior to the hearing. I am satisfied that the learned Justices provided Ms Andersen with procedural fairness in relation to Mr and Ms Stewart’s late material.
[10]Transcript page 1-69, lines 14 – 19.
[11]Transcript page 1-69, lines 42 – 44.
[12]Transcript page 1-70, lines 9 – 10.
Ms Andersen states that the tribunal was prejudicial and that, when she asked for clarification, she was ridiculed. I read the transcript carefully. I can find no evidence of ‘prejudice’ or ridicule.
Findings of fact
Ms Andersen has listed 54 errors of fact. She has also filed fresh evidence to support some of her propositions. 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 Ms Andersen 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?[13]
[13]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.
Ms Andersen says that the time for filing an application for compensation was too short if she was to prevent the distribution of the bond to Mr and Ms Stewart. The time for filing the application is determined by the Residential Tenancies and Rooming Accommodation Act, not the tribunal. The tribunal followed its normal processes. It is not for registry staff, or the learned Justices, to advise parties to seek an adjournment unless the issue of time is specifically raised. Ms Andersen did not raise it.
The tenants left in June 2104. Ms Andersen filed her application about one month later, on 15 July 2014. The hearing took place one month after that, on 19 August 2014. Ms Andersen therefore had two months to obtain quotes. I do not accept that this was not enough time.
Ms Andersen has not explained why the new information was not available earlier. It will not have an important impact on the results of the case. That evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Justices.
Mr and Ms Stewart also filed fresh material, presumably in response to Ms Andersen’s material. For the same reason, I decline to consider Mr and Ms Stewart’s material.
The transcript shows that there was considerable conflict in the evidence. Ms Andersen was trying to maximise the compensation she would receive. Mr and Ms Stewart were trying to minimise any payment they would have to make.
The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[14] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[15] My duty is to determine whether there is an error in the primary decision. It is not my task to decide where the truth lay as between the competing versions given by the parties.[16]
[14]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125 – 126.
[15]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[16]Fox v Percy (2003) 214 CLR 118 at 129 per Gleeson CJ, Gummow and Kirby JJ.
The learned Justices declined to give Ms Andersen compensation, not because they believed Mr and Ms Stewart, but because Ms Andersen failed to prove her case. For all but one item, there is nothing in the transcript to persuade me that the learned Justices should have taken a different view of the facts.
However, I am satisfied that the learned Justices erred in their treatment of the claim for the carpet. Mr and Ms Stewart conceded that the carpet was new when they moved in[17]. They admitted that the children spilt drinks ‘and things like that’ on the carpet[18]. They admitted that the carpet was stained[19] when they left. Ms Andersen’s photos show the carpet was badly stained. Ms Andersen is entitled to compensation for the attempt to clean the carpet and, when the attempt was unsuccessful, the cost of replacement.
[17]Transcript page 1-48, lines 1 – 5.
[18]Transcript page 1-31, line 38.
[19]Transcript page 1-31, lines 36 – 38.
Leave to appeal should be granted and the appeal allowed. Because the learned Justices’ decision has been executed through the Residential Tenancies Authority, I decline to set it aside. Instead, I order that Mr and Ms Stewart pay Ms Andersen $1,000 within 28 days of the date of order.
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