Cleak v Hirt

CITATION: Cleak v Hirt [2013] QCATA 321

PARTIES:	Lincoln Cleak (Appellant)
v
Kathja Hirt (Respondent)

APPLICATION NUMBER: APL220 -13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Judge Alexander Horneman-Wren SC, Deputy President

DELIVERED ON: 7 November 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1.    Leave to appeal is refused.

CATCHWORDS:

APPEAL – MINOR CIVIL DISPUTE – where the tenant had trees lopped – where the landlord withheld the bond – where the landlord claimed compensation for damage to trees – where the Tribunal ordered the bond be released – whether leave to appeal should be granted

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 65

Cachia v Grech [2009] NSWCA 232 , cited
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, cited

McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, cited

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41, cited

APPEARANCES and REPRESENTATION (if any):

The Appeal Tribunal heard and determined this matter on the papers in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. While she was a tenant in Mr Cleak’s property, Ms Hirt arranged for two trees, a mulberry and a macadamia, to be “trimmed”. At the end of the tenancy, Ms Hirt wanted her bond returned.

2. Mr Cleak arranged an inspection of the property and was “completely shocked” by the damage to the trees. He felt that the value of his property had decreased. He received a report from an arborist that suggested the trees had been butchered. He received a quote for $550 to remove the mulberry tree stump. His arborist estimated a cost of about $1,000 to restore the macadamia tree. Mr Cleak wanted to retain the bond so that he could address the damaged trees. A  Magistrate, sitting as an ordinary member of the Tribunal, ordered that the bond be released in full to Ms Hirt.

3. Mr Cleak wants to appeal that decision. He says that Ms Hirt misled the Tribunal. He repeats the facts that were before the learned Magistrate. He says that Ms Hirt had the onus of showing that he gave permission for the tree to be lopped and that she did not discharge that onus.

4. Because this is an appeal from a decision of the Tribunal in its Minor Civil Disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?[1]  Is there a reasonable prospect that the applicant will obtain substantive relief?[2]  Is leave necessary to correct a substantial injustice caused by some error?[3]  Is there a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage?[4]

   [1]        QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

   [2]        Cachia…