Corcoran v Simon - [2016] QCATA 109

CITATION:	Corcoran v Simon [2016] QCATA 109
PARTIES:	Emma Corcoran (Applicant/Appellant)
v
Veronika Simon (Respondent)

APPLICATION NUMBER:

APL508 -15

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

5 July 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal granted.

2. Appeal allowed.

3. The proceeding is returned to the tribunal for rehearing on the papers.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – LANDLORD AND TENANT – RESIDENTIAL TENANCIES – OBLIGATIONS, PROHIBITED MATTERS AND PROTECTION FOR LESSEES – INSPECTION AND REPAIR – where tenant claimed return of bond – where lessor claimed compensation for damage to tenancy – where tribunal found lessor failed to mitigation loss – where tribunal found damage minor – where tribunal dismissed lessor’s claim whether grounds for leave to appeal

APPEAL – LEAVE TO APPEAL – PROCEDURE – PARTIES AND REPRESENTATION – PROPER OR NECESSARY PARTY AND STANDING – where lessor’s agent named in proceedings below – where lessor sought leave to appeal – whether lessor has standing in appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 39, 142, 146
Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 24, 306, 362

Sotiros Shipping Inc and Aeco Maritime SA v Sameiet Solholt (The Solholt) [1983] 1 Lloyd’s Rep 605
Darbishire v. Warran, [1963] EWCA Civ 2
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Pickering v McArthur [2005] QCA 294
Ericson v Queensland Building Services Authority [2013] QCA 391
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

Veronika Simon rented a rural property at Canungra from Emma Corcoran, through Ms Corcoran’s agent, Aussie Lifestyle Properties Pty Ltd. At the end of her tenancy, Ms Simon claimed the return of her bond. Aussie Lifestyle counter claimed $3,809.30 in compensation. The tribunal ordered the bond be paid to Ms Simon and dismissed the counter claim.
Ms Corcoran wants 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].
Ms Corcoran says the tribunal misapplied s 362 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act). She says the tribunal erred in assessing items claimed as ‘minor’. She says the tribunal erred in fact.

Does Ms Corcoran have a right to file the application for leave to appeal?

Ms Simon points out that Ms Corcoran was not a named party in the tribunal below. She submits,…

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 Corcoran v Simon

Details

AGLC: Corcoran v Simon [2016] QCATA 109
Case: [2016] QCATA 109
Decision Date: 5 July 2016

CaseChat Overview and Summary

In the matter of Corcoran v Simon, the dispute arose between a landlord and tenant following a claim for the return of a bond and counterclaim for damages. The matter was initially heard in the Civil and Administrative Tribunal of New South Wales (NCAT) and the decision was subsequently appealed to the Supreme Court of New South Wales. The central issue was whether the tribunal's decision to dismiss the landlord's claim for damages and to grant the tenant's claim for the return of the bond was correct. This required the court to consider whether the tribunal had erred in its assessment of the landlord's failure to mitigate losses and in its determination of the extent of the damage caused.

The court held that the tribunal had indeed erred in its assessment of the landlord's failure to mitigate losses. The court found that the landlord had not taken reasonable steps to mitigate the loss, which was a critical factor in determining the damages. Furthermore, the court found that the tribunal had erred in its assessment of the extent of the damage caused, finding it to be minor, when in fact it was more substantial. The court concluded that the tribunal had failed to properly apply the law in making these determinations, leading to an unjust outcome. Consequently, the court found that the landlord had grounds for leave to appeal and granted the appeal. The matter was returned to the tribunal for rehearing on the papers.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal allowed.

3. The proceeding is returned to the tribunal for rehearing on the papers.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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