| CITATION: | Challands & Anor v Jackson [2014] QCATA 330 |
| PARTIES: | Lewis Challands and Jason Engel (Appellants) |
| v | |
| Sukhan Jackson (Respondent) |
| APPLICATION NUMBER: | APL283-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 9 and 10 November 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 12 November 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application for leave to appeal is dismissed. |
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- AGLC
- Challands & Anor v Jackson [2014] QCATA 330
- Case
- [2014] QCATA 330
- Decision Date
CaseChat Overview and Summary
In Challands & Anor v Jackson, the applicants sought leave to appeal a decision of the Queensland Civil and Administrative Tribunal (QCAT) which dismissed their application to terminate a residential tenancy. The applicants argued that the premises were unliveable due to various defects. The landlord conceded that there were defects in the premises but argued that they did not render the property unliveable and that the tenants had not given sufficient time to remedy the defects. The applicants argued that the Tribunal had erred in its finding that they had not given sufficient time to remedy the defects and that the Tribunal had given insufficient weight to the evidence of the condition of the premises.
The court held that the applicants had not established that the Tribunal had erred in its finding that they had not given sufficient time to remedy the defects. The court held that it was not reasonable to suggest that all or most of the defects could be rectified within the weekend and that the applicants had left the premises before the landlord could take any remedial action. The court also held that the Tribunal was not required to discuss all the evidence in its reasons for judgment and that its reasons were sufficient. The court held that the applicants had not established that the Tribunal had erred in its finding that the premises were not unliveable.
The application for leave to appeal was dismissed. The court held that the applicants had not established that the Tribunal had erred in its finding that the premises were not unliveable or that the Tribunal had given insufficient weight to the evidence of the condition of the premises. The court held that the Tribunal's reasons were sufficient and that there was no appellable error.
The court held that the applicants had not established that the Tribunal had erred in its finding that they had not given sufficient time to remedy the defects. The court held that it was not reasonable to suggest that all or most of the defects could be rectified within the weekend and that the applicants had left the premises before the landlord could take any remedial action. The court also held that the Tribunal was not required to discuss all the evidence in its reasons for judgment and that its reasons were sufficient. The court held that the applicants had not established that the Tribunal had erred in its finding that the premises were not unliveable.
The application for leave to appeal was dismissed. The court held that the applicants had not established that the Tribunal had erred in its finding that the premises were not unliveable or that the Tribunal had given insufficient weight to the evidence of the condition of the premises. The court held that the Tribunal's reasons were sufficient and that there was no appellable error.
Orders
Orders of the court
The application for leave to appeal is dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
The Tribunal gave no, or no sufficient weight to evidence of the condition of the premises’ entertainment area: The issue before the Tribunal was not whether the premises were defective (a point not seriously disputed) but the radical question: Were the premises non-liveable? A shabby “entertainment area” in the backyard could reasonably be seen by the Tribunal as peripheral to that issue. The duty to give reasons does not require discussion of evidence so regarded.[18] Trial judges (and tribunals) must balance their duty to explain with their duty to be brief.[19] The ex tempore decisions of hard-pressed primary tribunals are not to be pedantically parsed and analysed.[20] A fine-tooth comb should not be used in search of some verbal slip to justify appellate intervention.[21] Criticism of reasons for judgment should be adjusted to the circumstances,[22] including the nature of the question to be decided, and the functions, attributes and talents of the member or members:[23]It is plainly unnecessary for a judge to refer to all the evidence ... The extent of the duty to record evidence given depends, as the duty to give reasons does, upon the circumstances of the individual case.[24][18]Kiama Constructions Pty Ltd v Davey (1986) 40 NSWLR 639 at 647; Mirage Resorts Holdings Pty Ltd (as trustee of the Mariners Paradise Property Trust) v Brellen Pty Ltd [2003] QCA 579 at [55] – [56].[19]Strbak v Newton [1989] NSWCA 202 at page 7 per Samuels JA.[20]Commissioner of Taxation v Baffsky (2001) 122 A Crim R 568 at 578 per Spigelman CJ; FV Rentals t/as Forbes Realty Rentals v Anderson [2014] QCATA 181 at [6]; Manonai v Burns [2011] WASCA 165 at [56]; Absolon v NSW Technical and Further Education Commission (1997) 75 IR 47; affirmed [1999] NSWCA 311.[21]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291 – 292 per Kirby J.[22]Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219; [2009] QCA 66 at [60].[23]Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462 at 485.[24]Mifsud v Campbell (1991) 21 NSWLR 725 at 728 per Samuels JA. When the true nature of the inquiry – liveability or non-liveability – is steadily borne in mind, this complaint reveals no appellable error. The Tribunal erred in law and fact in its finding that the Tenants did not allow the Landlord sufficient time to remedy defects: The Tenants went into occupation, gave notice of intention to leave, and left, on the same day – a Saturday. It cannot be reasonably suggested that all or most of the defects complained of could be rectified that same weekend, and by the Monday the Tenants had gone. Contrary to their claim that the agents refused several requests for remedial action[25], their advocate notes the view that there ‘was nothing [they] could do about it until Monday morning’.[26] The Landlord admits that there were ‘maintenance items that need[ed] to be attended to’, but says that no reasonable opportunity to remedy them was given.[27] In view of the immediate walkout, the Tribunal was entitled to accept that submission. [25]Grounds of appeal filed 25 June 2014.[26]Transcript page 72 lines 1 – 2 (Challands Snr).[27]Ibid page 35 line 1; page 38 lines 28 – 29 (Gallagher).
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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