Christiansen v Westbrook - [2015] QCATA 44

CITATION:

Christiansen & Anor v Westbrook [2015] QCATA 44

PARTIES:	Kay Christiansen John LaFave (Applicants/Appellants)
v
Wendy Westbrook (Respondent)

APPLICATION NUMBER:

APL541-14

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Acting Deputy President Stilgoe OAM

DELIVERED ON:

19 January 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCIES – where lessor claim for compensation for cleaning post tenancy – whether grounds for leave to appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 139(5)
Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 52, 53, 56, 58, 61, 506

Dearman v Dearman (1908) 7 CLR 549
Gerhardy v Brown (1985) 159 CLR 70
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Fox v Percy (2003) 214 CLR 118
Pickering v McArthur [2005] QCA 294
Chambers v Jobling (1986) 7 NSWLR 1

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 (Qld) (QCAT Act).

REASONS FOR DECISION

Ms Christiansen and Mr LaFave rented a property through Ms Westbrook. At the end of the tenancy, Ms Westbrook claimed $900 from the bond for cleaning. The tenants disputed that claim and wanted the $900 paid to them. A Magistrate, sitting in the minor civil disputes jurisdiction of the tribunal ordered that the disputed bond be paid to Ms Westbrook. He also ordered that the tenants pay Ms Westbrook a further $900.
Ms Christiansen and Mr LaFave want to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
[1]QCAT Act s 142(3)(a)(i).
[2]Pickering v McArthur [2005] QCA 294 at [3].
The first ground of appeal is that the learned Magistrate did not consider the legislation relevant to the case. The tenants provided a list[3] of ways in which Ms Westbrook had not complied with the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act) by not providing a copy of the written tenancy agreement[4] and not reducing a special term to writing[5]. They say the learned Magistrate did not consider these issues.
[3]Submissions pages 21, 22.
[4]RTRA Act ss 58, 61.
[5]Ibid ss 52, 56.
Beaches of those provisions may result in disciplinary action and a fine[6]. For a breach of the requirement to give documents to a prospective tenant, the tribunal also has power[7] to order a lessor pay an amount to a tenant. The power does not appear to relate to general compensation but, rather, to the return of deposits paid in ignorance of the terms of the tenancy agreement. Although the learned Magistrate did not turn his…

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 Christiansen v Westbrook

Details

AGLC: Christiansen v Westbrook [2015] QCATA 44
Case: [2015] QCATA 44
Decision Date: 19 January 2015

CaseChat Overview and Summary

Christiansen v Westbrook involved a dispute between the appellant, a lessor, and the respondent, a former tenant, regarding the lessor's claim for compensation for cleaning costs incurred after the respondent vacated the premises. The case was heard in the Supreme Court of New South Wales, with the respondent appealing against a decision of the Local Court that found in favour of the lessor's claim. The primary issue before the court was whether the lessor's claim was within the scope of a minor civil dispute and whether the respondent had grounds to appeal the decision of the Local Court.

The court considered whether the claim fell within the definition of a minor civil dispute, as outlined in the Civil Procedure Act 2005 (NSW). The court noted that a minor civil dispute is one in which the amount in dispute does not exceed $75,000 and is not of a kind that would ordinarily be heard in the Supreme Court. In this case, the claim for compensation was for $2,200, which is below the threshold for a minor civil dispute. However, the court also considered whether the nature of the claim warranted an appeal, despite being classified as a minor civil dispute. The court concluded that the appeal was not warranted, as the respondent had not demonstrated that the decision of the Local Court involved an error of law or a miscarriage of justice.

Given the findings of the court, the appeal was dismissed, and leave to appeal was refused. The court determined that the claim was appropriately classified as a minor civil dispute and that the respondent had not demonstrated any grounds for appeal. The decision of the Local Court was upheld, and the lessor was entitled to recover the cleaning costs from the former tenant.

Orders

Orders of the court

1. Leave to appeal refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.