Brooks & Orman v Gavi

[2010] QCATA 6

CITATION: Brooks & Orman v Gavi & Ors [2010] QCATA 6

PARTIES:	Ms Kellie Brooks and Mr Jason Orman (Applicants)
v
Mr Gerald Gavi, Miss Melissa Elizabeth Esmond and Miss Monita Anthony (Respondents)

APPLICATION NUMBER:            APL007-10               

MATTER TYPE: Application for Leave to Appeal

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: President

DELIVERED ON:   27 April 2010

DELIVERED AT:   Brisbane

ORDERS MADE:  

Application for leave to appeal dismissed

CATCHWORDS : 

RESIDENTIAL TENANCIES  - COMPENSATION FOR DAMAGES TO PROPERTY -  where the owners allege the tenants damaged the oven and that it needs to be replaced

Residential Tenancies and Rooming Accommodation Act 2008, s 142(3)

APPEARANCES and REPRESENTATION (if any):

APPLICANT: 

RESPONDENT: 

REASONS FOR DECISION

1. The applicants Ms Kellie Brooks and Mr Jason Orman are co-owners of a property dwelling in Salisbury. The property is managed by Tony Zagorski of Master Property Rentals.

1. The respondents Mr Gerald Gavi, Miss Melissa Elizabeth Esmond and Miss Monita Anthony were tenants of the dwelling on a six month lease between 23 June 2009 and 19 November 2009.

1. On 25 November 2009, six days after the termination of the lease and five days after the initial inspection, Ms Brooks discovered scratches inside the bottom of the oven. She alleges that an oven tray was placed at the bottom of the oven shelf to cover them up.  She also took photographs of the inside of the oven.

1. As a consequence, a dispute arose over the return of the $2000 bond. The tenants applied to the Residential Tenancies Authority (‘RTA’) for assistance and mediation was conducted between them and the owners’ property agent, Mr Zagorski. At the mediation, Mr Zargoski advised that Ms Brooks and Mr Orman were claiming the full amount of the bond to contribute to the cost of replacement of the oven. However, no documentary evidence pertaining to the damage was presented. The owners also claimed $139 for a new toilet seat and $6.43 for a light bulb. The dispute was, unsurprisingly, not resolved at the mediation.

1. The tenants then commenced proceedings in this Tribunal. The matter was heard by an adjudicator on 28 January 2010. At the hearing, the owners were once again represented by Mr Zargoski. The cost for replacement of the toilet seat and light bulb was not disputed by the claimants, only the return of the bond.

1. The learned adjudicator found that, on the evidence before her, Mr Zargoski failed to meet the evidential burden of establishing who had actually caused the damage to the oven, when the damage occurred, the current cost to replace the oven, or whether complete replacement was actually necessary.

1. The learned adjudicator ordered that the claimants pay $145.43 to the owners for the replacement of the toilet seat and light bulb, and upon evidence of payment, that the RTA then pay $2000 to the claimants for the full amount of the bond.

1. The owners seek leave to appeal that decision. 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. The owners assert that the adjudicator did not make the necessary inferences available from the evidence, and erred: (i) by finding that it could not be established who caused the damage to the oven, and (ii) by accepting that the damage to the oven was only superficial.

1. The transcript of the proceeding shows that the learned adjudicator carefully considered all the evidence.

1. Mr Zargoski submitted photographs of the inside of the oven as it allegedly appeared before and after the tenants had resided at the dwelling, but could not fix the exact date when the pictures were taken.

1. Affidavits from the owners alleged that the tenants must have caused the damage to the oven because there were no scratches before the tenancy, and no other persons occupied the property between the time these tenants moved out and the pictures were taken.

1. However, there was evidence from all the tenants, which the learned adjudicator described as reliable, that they had not caused any damage.  There was no evidence to show the scratches might not have been the product of some other cause including, say, normal wear and tear.

1. A receipt for the original price of the oven was also presented, but Mr Zargoski did not provide any evidence as to the current cost for replacement; or, that the scratches themselves could not simply be repaired.

1. One of the tenants, Ms Monita Anthony, submitted email correspondence from a representative from Major Electrical Appliances (authorised oven repairers for that particular model) who advised that scratches would only be superficial and would not affect its performance. There was also some evidence that new tenants were aware of the scratches, but were not experiencing any problems with the performance of the oven.

1. The owners’ complaint is, essentially, that the learned adjudicator erroneously declined to infer from the evidence they presented that the scratches were caused by conduct of the tenants, which constituted a breach of the terms of the tenancy, and that the replacement cost of the oven was the proper measure of the compensation to which they were entitled.  For the reasons explored above, the evidence did not compel those inferences. The findings of the learned adjudicator were, rather, consonant with the weight of the evidence she had before her. 

1. There is, then, 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.