Cameron v Spalding
[2012] QCATA 145
•16 August 2012
| CITATION: | Cameron v Spalding [2012] QCATA 145 |
| PARTIES: | Kristine Louise Cameron (Applicant/Appellant) |
| v | |
| Ian Spalding (Respondent) |
| APPLICATION NUMBER: | APL422-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 16 August 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal refused. |
| CATCHWORDS: | Damage to property – whether tenant liable – whether removal costs recoverable by tenant – whether compensation for inconvenience available – whether QCAT Act s 29 observed – whether leave to appeal should be granted Residential Tenancies and Rooming Accommodation Act 2008, ss 185, 188, 325, 327 Fine v Geier [2003] QSC 73 Stella Property Solutions Pty Ltd v Simmondson [2011] QCATA 198 Robinson v Corr [2011] QCATA 302 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 |
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 (QCAT Act).
REASONS FOR DECISION
On 27 July 2010 Ms Cameron entered into a General Tenancy Agreement with Ting Huo under the Residential Tenancies and Rooming Accommodation Act 2008 (RTRA Act). The premises are at Gladstone. The commencing date for the agreement was 27 July 2010, and the tenancy was to cease on 24 January 2011. Subsequently, title to the premises was transferred from Ting Huo to the present Respondent, Mr Spalding.
On 26 November 2010 the parties agreed to extend the tenancy to 25 July 2011.
On 27 June 2011 Ms Cameron filed a Minor Civil Dispute application against Huo (amended to refer to Spalding) claiming $6,144.56, and alleging that the premises were unliveable due to “broken asbestos in walls” threatening her health and that of her 5 children. She also alleged that she had served two notices to remedy the breach[1] without any, or any satisfactory response from her landlord. On 20 June 2011 she served notice of intention to leave,[2] surrendering vacant possession on 27 June 2011.
[1] RTRA Act, s 325.
[2] RTRA Act, s 327.
The details of Ms Cameron’s claim were:
a)Application fee $92.00;
b)Building inspection $143.00;
c)Builder’s film and tape $43.84;
d)Removal expenses (vehicle and trailer hire, petrol) $1,045.72;
e)Rent reduction and inconvenience $3,500;
f)Refund of bond $1,320.
The total claim was for $6,144.56.
On 16 February 2012 Mr Spalding lodged a separate application alleging that the walls of the premises were damaged by Ms Cameron’s children, and that her abandonment of the lease was without lawful justification or excuse. Mr Spalding claimed $3,380 from Ms Cameron, made up as follows:
a)Net cost of repairing walls (after credit for bond) $1,580 (the bond was later refunded);
b)Net loss of rent 28 June 2011 to 25 July 2011 (end of lease) $1,140;
c)Loss of rent during repairs (2 weeks @ $330) $660.
The total of his cross-claim was $3.380.
The matter was heard by a Magistrate, sitting as a QCAT Member. The separate applications were heard together, and treated as claim and counterclaim.
The learned Magistrate found that the walls were in fact made of asbestos-cement sheeting, prone to crumble easily if disturbed. But, it was common ground that the premises were at least 50 years old, and questions of fitness and state of repair are to be assessed reasonably, in the light of age, character and locality.[3]
[3] Fine v Geier [2003] QSC 73; Bond v Weeks [1999] 1 Qd R 134.
The Magistrate also found that Mr Spalding had purchased the premises in reliance on a building inspection report that did not mention asbestos, and that his agent did not undertake an inspection until 2-3 months after Ms Cameron complained.
However, the Magistrate was satisfied that Ms Cameron was responsible for the damage to the walls, and that it “was not fair wear and tear”.[4]Consequently, he awarded Mr Spalding $3,150 for necessary repairs.
[4] Decision page 3.
Other claims by Mr Spalding were dismissed, namely carpet and other cleaning fees, $65 of a claim for $165 for repairing damaged doors, and loss of rent after the tenancy was terminated and before repairs could be effected.
On her application Ms Cameron was awarded $186.84 for a building inspection and temporary repairs, and a rent reduction of $960. Her claims for removal expenses and “inconvenience” were disallowed.
In the result, Mr Spalding was awarded $3,250 (including $100 for repairs to doors)[5] and Ms Cameron was allowed $1,146.84, leaving her with a judgment debt of $2,103.16, payable within 3 months.
[5] The amount already offered by the Tenant on that account.
She seeks leave to appeal on these grounds:
a)denial of natural justice;
b)failure to give proper consideration to the Tenant’s submissions and evidence;
c)failure to comply with section 29 of the QCAT Act, particularly section 29(1)(a)(i);
d)failure to consider the relevant RTRA Act provision including s 185;
e)failure to have any sufficient regard to the fact that a tradesman who quoted for removal of asbestos sheeting was not the holder of an appropriate licence;
f)failure to take into account the period of time spent by the Tenant in attempting to have remedial work done by the former landlord Huo, and his non-disclosure of material defects in the premises.
Ms Cameron’s grounds
In considering the grounds of appeal it must be remembered that the only claim allowed against Ms Cameron was for damage to property – $3,150 for replacing wall panels, and $100 for repairs to doors. In awarding the latter amount, the Magistrate disallowed a claim for $165 in part, choosing an amount that Ms Cameron had already offered to pay.[6]
[6] Transcript of hearing 7 October 2011 (T”) page 13.
Ground (a): Natural Justice – This has become a frequent plea in appeals to this Tribunal. A careful reading of the transcript discloses no discourtesy on the part of the learned Magistrate, and shows he was careful to ensure each party had a fair, and ample, chance to put its case. Ms Cameron was invited, twice, to make further submissions, and on each occasion she proceeded, uninterrupted, to do so.[7] She gives no details in support of the claim of procedural unfairness. It is, the transcript reveals, without substance.
[7] T 7 and 14.
Ground (b): No proper consideration of the tenant’s submissions or evidence – Once again there is a complete absence of detail. The allegation as it stands is merely a broad expression of dissatisfaction with the result. It ignores the fact that the learned Magistrate decided several issues in favour of Ms Cameron, thus reducing her liability by $1,146.84. This ground, too, is unsustainable.
Ground (c): Non-compliance with QCAT Act, s 29 – The only particular of this complaint is that the Tribunal failed to offer Ms Cameron an adjournment to obtain her own quotation or quotations for repairs to damaged wall panels. This does not raise any question of law, Tribunal procedure, or issue of fact which the Tribunal should have identified and explained to the Tenant.[8]
[8]Contrast Susanna and John Pty Ltd v Trident Ashgrove JV Pty Ltd [2010] QCAT 170 at [6]; Addo v Cairns and District Regional Housing Corporation [2012] QCATA 105 at [8].
Any party to a dispute of this kind confronted with a claim for repairs and unwilling to pay the amount claimed may reasonably be expected to obtain their own quotation (and anticipate the need to do so), if they seriously intend to challenge the amount of the claim. There is no suggestion that the tenant is subject to any disability, or to any cultural or linguistic handicap that would have prevented her from taking that simple, practical step, on her own initiative, well before the hearing. The transcript reveals that she conducted her case forcefully and articulately, and showed initiative in locating and making inquiries of Safe Work Australia,[9] and in arranging an expert inspection of the premises.
[9] T 7.
Section 29 does not mean that a party of normal capacity may leave the preparation or conduct of their case to the Tribunal. When the repairer’s invoice for $3,150 was produced,[10] Ms Cameron did not raise any objection to the amount. Her case essentially was that regardless of the amount claimed she was not legally liable for the cost of repairing the walls. At no stage of the hearing did she suggest that the amount, as distinct from liability to pay, was a live issue. I am not persuaded that the learned Magistrate neglected any duty imposed on him by section 29.
[10] T 10.
Ground (d): Failure to have due regard to the RTRA Act, including s 185 thereof – Clearly this is a reference to a lessor’s particular duty to ensure that premises are habitable, in good repair, and that they are maintained in good repair. It is also pertinent to refer to s 188 of the RTRA Act, which has been applied against tenants several times in this Tribunal.[11] That section requires a tenant to leave the premises, so far as possible, in the same condition they were in at the start of the tenancy, fair wear and tear excepted.[12] Ms Cameron admitted to the learned Magistrate and to the landlord’s agent that the damage in question was caused by her children, by an inspector engaged by her, and in one case, at least, by herself.[13] The Magistrate found as a fact that the damage was not fair wear and tear.[14] This ground has not been made out.
[11]Griffin v Gini [2011] QCATA 325 (damage to walls, appeal on quantum dismissed); Stella Property Solutions Pty Ltd v Simmondson [2011] QCATA 198 (leave to appeal refused).
[12] RTRA Act, s 188(4).
[13] T 3, 4, 8.
[14] Decision page 3.
Ground (e): Failure to have any, or any sufficient regard, to the fact that a tradesman who quoted for removal of asbestos sheeting was not the holder of an appropriate licence – The learned Magistrate tactfully indicated that this evidence was irrelevant to the only issue decided against Ms Cameron, namely, liability for damage to wall panels. In my respectful view, he was quite correct. Immediately after his intimation Ms Cameron replied: “Okay, that’s fair enough,”[15] and did not mention the point again. There is no substance to this ground.
[15]T 7.
Ground (f): Failure to take into account the period of time spent by the tenant in attempting to have remedial work done by the former landlord, Huo, and his non-disclosure of material defects in the premises – The Magistrate found on the evidence, including admissions by Ms Cameron, that the damage in question was caused by the tenant, and that she, not the landlord, was liable to repair it. That was a finding the Magistrate was entitled to make on the evidence presented to him, and it is not one to be re-tried on appeal. There is no substance to this ground.
Should Leave to appeal be granted?
In a case of this kind there is no appeal as of right; and leave is required.[16] It is a prime object of the QCAT legislation to resolve disputes quickly and economically.[17] Subject to reason and natural justice, finality of the primary decision is consonant with those aims.
[16] QCAT Act, s 142(3)(a)(i).
[17] QCAT Act, s 3(b).
There are well settled principles for deciding whether leave to appeal should be granted. It is not nearly enough for a party to express disappointment at the original decision, or a feeling that justice has not been done.[18] It must be shown that the decision in question is affected, arguably at least, by an appellable error, resulting in a substantial injustice to the intending appellant.[19]
[18] Robinson v Corr [2011] QCATA 302 at [7].
[19]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; Drew v. Bundaberg Regional Council [2011] QCA 359 at [19].
It is not such an error to prefer one version of the facts to another, or to attribute more weight to the evidence of one witness than that of another. Findings of fact will not usually be disturbed on appeal if the findings have rational, albeit debateable support in the evidence.[20] Where reasonable minds may differ, a decision cannot properly be called erroneous simply because one conclusion has been preferred to another possible view.[21]
[20] Fox v Percy (2003) 214 CLR 118 at 125-126.
[21]Minister for Immigration and Citizenship v SZMDS & Another(2010) 240 CLR 611 at [131].
One clear purpose of a “leave” proviso is to preclude attempts to conduct retrials on the merits.[22] No question of general importance[23] arises here, and no error of law has been shown. An appeal, if allowed, would have no reasonable prospects of success. Leave must be refused.
[22] Contrast QCAT Act, s 20 (the review jurisdiction).
[23]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
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