Coustley v Daly
[2018] QCATA 117
•22 August 2018
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Coustley & Anor v Daly & Anor [2018] QCATA 117
PARTIES:
KEVIN COUSTLEY
(first applicant)
JILLIAN COUSTLEY
(second applicant)v TODD DALY
(first respondent)
LAUREN FINDLAY
(second respondent)
APPLICATION NO/S:
APL393-17
ORIGINATING APPLICATION NO/S:
MCDT270-17 (Maroochydore)
MATTER TYPE:
Appeals
DELIVERED ON:
22 August 2018
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member Howe
ORDERS:
Application for leave to appeal refused
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – points and objections not taken below – when not allowed to be raised on appeal – where the lessors claimed additional damages not litigated below – where the additional claim refused – where no error of law identified in the appeal – where the Tribunal not obligated to investigate potential grounds of appeal
Pickering v McArthur [2005] QCA 294
REPRESENTATION:
First Applicant:
Self-represented
Second Applicant:
Self-represented
First Respondent:
Self-represented
Second Respondent:
Self-represented
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
The respondents (the tenants) rented a home under a 6 month fixed term residential tenancy agreement commencing 17 March 2017. Prior to the expiry of the term they gave a notice to remedy breach to the agents representing the appellants (the owners) citing a number of maintenance and safety matters to be remedied. They subsequently gave a Form 13 Notice of Intention to Leave and vacated on 17 July 2017 before expiry of the full term.
Through new real estate agents the owners filed a tenancy application in the Tribunal claiming rent of $2,272.54, a break lease fee of $552 and cleaning expenses of $643.
The matter was heard before Justices of the Peace on 29 November 2017 and the Justices of the Peace ordered, as far as relevant, that the tenants pay the owners only $200 in respect of cleaning expenses. The claim for rent and a break lease fee was dismissed.
The owners want to appeal that decision.
Given this is an appeal from a decision made in the Tribunal’s Minor Civil Dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.[1]
[1]Queensland Civil and Administrative TribunalAct 2009 (Qld), s 142(3)(a)(i).
Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.[2]
[2]Pickering v McArthur [2005] QCA 294, [3].
The Grounds of Appeal
In an application for leave to appeal or appeal, it is essential that an appellant show an error has been made in the decision below. An appeal is not an opportunity to have the matter heard again, perhaps the second time round with a better outcome for the appellant. The appellant must be able to show that the decision appealed was wrong either in fact or in law or mixed fact and law.
In this matter the owners fail to articulate how the decision below was wrong. In their application for leave to appeal or appeal they describe the decision of the Justices of the Peace as unsatisfactory because of their expenses of repairs and their damages suffered with the removal of furniture and other items from the house and storing them outside. That is in Part C to the appeal application under the heading Grounds of Appeal.
Under Part D entitled Orders Sought, they say they want to claim for damages and loss of rent for the term of the contract and ‘following through on orders made
4 October 2017’.
The decision on 4 October 2017 was a decision made at a hearing which the tenants failed to attend. They were ordered to pay $2,853.61, though it is not clear how that amount was arrived at. Subsequently the tenants applied to reopen the proceedings on the basis that the notice of hearing had been sent to the wrong address. That application to reopen was allowed and the matter heard again by the Justices of the Peace on 29 November 2017 with the result this time that the tenants were only ordered to pay $200 for cleaning costs.
The owners filed an application for miscellaneous matters in the appeal proceedings on 9 April 2018 saying they wanted to increase their rent claim and add a claim for damage to a kitchen benchtop said to be caused by a cigarette burn, plus add a claim for damage to furniture bringing the total now sought to $8,880. That application was refused. The additional claims totalling something over $6,600 should have been brought in the hearing before the Justices of the Peace. They were not and cannot be added now, for the first time, in an application for leave to appeal or appeal.
Nowhere in the owners’ material is there any identification of an error made by the Justices of the Peace below or otherwise any indication given as to an error made either in fact or law which would justify why the decision should be set aside as wrong.
The initial claim before the Tribunal was for $3,517.54 consisting of a claim for rent of $2,272.54, break lease fee of $552 and cleaning cost of $643. The transcript of the hearing before the Justices of the Peace shows these matters were aired and submissions made by both parties. The Justices of the Peace gave reasons for their decision. It is not for the Appeal tribunal to conduct a general rehearing to validate the determination by the Justices of the Peace.
Leave to appeal is refused.
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