Baczynski v White

[2010] QCATA 100

CITATION: Baczynski v White [2010] QCATA 100

PARTIES:	Tanya Baczynski (Applicant/Appellant)
v
Mandy White (Respondent)

APPLICATION NUMBER:            APL135-10               

MATTER TYPE:

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Justice Alan Wilson, President
Susan Gardiner, Member

DELIVERED ON:   8 December 2010

DELIVERED AT:   Brisbane

ORDERS MADE:  Application for leave to appeal refused         

CATCHWORDS : 

RESIDENTIAL TENANCIES – COMPENSATION – TENANT LIABILITY – where the adjudicator ordered the tenants pay an amount in compensation to the lessor – where one of the tenants does not dispute the amount but the apportionment – where the adjudicator proceeded with the presumption of joint liability – where the tenant did not raise any objections about apportionment at the hearing – whether leave should be granted

Queensland Civil and Administrative Tribunal Act 2009, s 142(3)

REASONS FOR DECISION

President:

1. I have had the benefit of reading the reasons of Ms Gardiner, QCAT Member, in draft. I agree with her reasons, and her conclusions, and the order she proposes.

Member Susan Gardiner:

1. Ms Tanya Baczynski was one of three tenants who entered a tenancy agreement for a property in Southport in February 2009.  This lease was terminated on 9 February 2010 and a warrant for possession issued and was served by the police on 14 February 2010.  The tenants were to be evicted on 20 February 2010 but two extensions were given by the police to the tenants, who finally moved out on 24 February 2010. 

1. Proceedings were commenced in QCAT by the respondent, the owner of the premises, to recover compensation and damages for various matters relating to the tenancy. The application was heard with another application arising from the circumstances of the eviction brought by another of the co-tenants.  The proceeding which is the subject of the present application for leave to appeal was finally determined by an order of payment by the co-tenants in favour of the premises owner. 

1. Ms Baczynski seeks to appeal that decision – i.e., the order concerning the payment to the premises owner.  As this matter arises from a Minor Civil Dispute, leave to appeal is necessary: Queensland Civil and Administrative Tribunal Act 2009, s 142(3).

1. Ms Baczynski does not argue that the amount set out in the decision by the learned adjudicator as owing to Ms White is wrong.  Rather, she contends in her appeal application that she is not responsible for some of the amounts found to be owing to the premises owner, Ms White.  She asks this Tribunal, in effect, to apportion the monies owing to Ms White as between herself and the other tenants.   

1. Tenancy agreements involving more than one tenant usually involve a joint liability, on the part of all the tenants and each of them, under the tenancy agreement.  The transcript of this matter shows no evidence was provided by Ms Baczynski to the adjudicator to indicate that this agreement was any different.  Indeed, the transcript shows the learned adjudicator dealing with the matter on the presumption of joint liability, with no issue or objection or argument being raised, by Ms Baczynski, to that course of action.

1. It is not now open to Ms Baczynski to raise, with this appeal Tribunal, matters she did not raise before the adjudicator.  It is also highly likely that this tenancy agreement was in reality a joint liability.  If that was so, then Ms Baczynski must look to her co-tenants to resolve how the order of the learned adjudicator is satisfied. 

1. There is no demonstrated or discernable error in the learned adjudicator’s decision. There is no question of importance about which a further argument and a decision of the Appeal Tribunal would be of public advantage[1]. Leave to appeal should be refused.

   [1]        Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388; McIver Bulk Liquid

   Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577