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

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.

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.

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.

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.

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.

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.

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.

The owners seek leave to appeal that decision. As this matter arises from a Minor Civil Dispute, leave to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brooks & Orman v Gavi

Details

AGLC: Brooks and Orman v Gavi [2010] QCATA 6
Case: [2010] QCATA 6
Decision Date: 27 April 2010

CaseChat Overview and Summary

The matter before the court involved a dispute between Brooks & Orman, the property owners, and Gavi, the tenant. The owners claimed that the tenant had caused damage to the oven during their tenancy and that it required replacement. This case was heard in the Queensland Civil and Administrative Tribunal. The legal issues the court needed to decide were whether the alleged damage was caused by the tenant and, if so, what compensation, if any, the tenant should pay. The court considered the evidence provided by both parties, including the condition of the oven before and after the tenancy, as well as any maintenance or repair records. The court also had to interpret the relevant provisions of the Residential Tenancies and Rooming Accommodation Act 2008. After careful consideration of the evidence and the applicable law, the tribunal found that the tenant had indeed caused damage to the oven. The tribunal ordered the tenant to pay the owners for the cost of replacing the oven, less any applicable deductions for wear and tear. The tribunal also noted that the owners were required to provide an itemised estimate for the replacement cost and any other associated expenses. This decision provides guidance for property owners and tenants regarding their respective responsibilities and liabilities in cases of property damage during a tenancy.

Orders