Cullen v L.J. Hooker Bay Islands - [2023] QCATA 92

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Cullen v L.J. Hooker Bay Islands [2023] QCATA 92

PARTIES:

DEBRA CULLEN

(applicant/appellant)

v

L. J. HOOKER BAY ISLAND

(respondent)

APPLICATION NO/S:

APL204-22

ORIGINATING APPLICATION NO/S:

MCDT26-22

MATTER TYPE:

Appeals

DELIVERED ON:

11 July 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

Leave to appeal is refused

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – RESIDENTIAL TENANCY – where applicant evicted from rental premises – where personal belonging remained at the residence for many months – where good disposed of by the lessor – where claim for compensation – whether value of goods exceed cost of removal and storage whether independent evidence as to value probative.

Queensland Civil and Administrative Tribunal Act 209 s 143(3)(a)(i)

Rintoul v State of Queensland & Ors [2018] QCA 20

Robinson Helicopter Company Incorporated v McDermott

[2016] HCA 22

Terera v Clifford [2017] QCA 181

APPEARANCES & REPRESENTATION:

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

This is an appeal from a decision of the Tribunal dismissing the applicant’s claim for compensation for the loss of her property and motor vehicle when, on 11 March 2021, she was evicted from the premises she was renting on Russell Island. She had left her possessions and car at the residence. She did not make any attempt or claim to try and retrieve her property until she contacted the respondent on 25 October 2021. By that stage her possessions had been disposed of so she filed an application for compensation in the Tribunal on 27 February 2022. It was defended and the matter went to hearing before a tribunal member on 9 June 2022. Her claim was dismissed.
Although the claim was made against the respondent, it was the managing agent for the owner of the property Paul Lee, the claim was really again stim. He brought a counter-claim for rental arrears in the sum of $2,464.29. That claim was also dismissed.
On 8 July 2022, the applicant filed an application for leave to appeal or appeal. The grounds of appeal challenge the findings of fact by the learned adjudicator as to the value of the possessions left behind in the rental property, and the value of the vehicle. The applicant also refers to photos on her old broken phone, now retrieved, showing photographs of her 1999 Nissan 4 x 4 Pathfinder vehicle. This evidence was not available at the hearing and, the applicant submits, goes to the value of the vehicle. This is new evidence.
Both parties have filed submissions. Apart from the photographs a review of all of the submissions lead to the conclusion that largely it is a repeat of what was put to the Tribunal to consider at first instance. The applicant’s submission, accepting that she is self-represented, is a series of comments hand written on various documents, including letters, emails and photographs. They challenge, as I said, the findings of fact by the learned adjudicator.
In addition to the submissions of the parties, I have a transcript of the hearing as well as the reasons for decision. What is evident from the reasons is that the learned adjudicator carefully considered the evidence, the cost of removal of the applicant’s possession their storage costs and the added cost of removing items from Russell Island to the mainland by barge, which is the only form of transport.
These issues were important because the applicant’s claim was made under sections 363 and 365 of the Residential Tenancy and Rooming Accommodation Act. Section 363(2) provides:
The person who was the lessor (the former lessor) may sell the goods, or dispose of them in another way, if the former lessor believes on reasonable grounds that—
the market value of the goods is less than the amount prescribed under a regulation; or
storage of the goods—
(i) would be unhealthy or unsafe; or
(ii) would cause the market value of the goods to be completely or substantially depreciated; or
the cost of removing, storing and selling the goods would be more than the proceeds of the sale of the goods.
The learned adjudicator was mindful of the need to have regard to the various sections and even quoted them to the parties at the commencement of the hearing. In particular subsections (6) which provide:
The former lessor or the former lessor’s agent must not sell or dispose of the goods except as provided under subsections (2), (4) and (5), unless the former lessor or agent has a reasonable excuse.
If satisfied that the lessor has not complied with s 363 then a compensation order can be made under s 365. To determine whether compensation was payable, there had to be a value attributed to the goods, the cost of storage and removal, here by barge to the mainland to access storage facilities. The learned adjudicator informed the parties about the relevant amount for consideration, she said:[1]
Now, I'm not sure if you're aware of that, but the prescribed amount for the value is $1500. It's not $1800 which seems to be, Mrs Nelson, what you have advised Mr and Mrs Lee. The prescribed amount is $1500. So, if I was to find that the value of the goods contained when they were photographed by Ms Nelson or by someone from the agency, was over $750, then it seems to me, unless she can establish that there were reasonable grounds for thinking that the market value was less than the amount of that storage, the cost of storage will be more than the proceeds of sale goods, then on hand to conclude that those goods should not have been disposed of.
[1]Transcript page 8 line 30
The Tribunal heard evidence from Ms Nelson, from the respondent, and Ms Cullen. There was discussion about the value of the Nissen, the fact that it was not registered and would not go. It needed a battery, but also there was independent evidence which the learned adjudicator accepted that because of noise in the engine and it would likely require a rebuild. Not only that, it had done nearly 300,000 klms and was over 21 years old. On the evidence she attributed a value of $750.00 which was consistent with the “Red Book” value.
Overall, as to the value of the applicant’s possessions she accepted the evidence of Ms Nelson. She made a specific finding as to why she did so and said:
The only independent evidence I had was of Miss Nelson whose relationship with Mr and Mrs Lee terminated some time ago and I do accept that she has no interest in the no further interest in the – no further interest in the outcome or the relationship with Mr and Mrs Lee. So I conclude that the value of the goods, excluding the car, was in the region of $1,800 but what needs to be considered from that point is the cost of transporting the goods and storing them and also selling them.
Given Ms Nelson's experience as a real estate agent, I also accept her independent evidence of what the possible costs might be, although no other detailed evidence was put before me. Ms Nelson gave evidence that to have the goods transported from the island would have cost $1000. There would have been a barge for your $500 for the truck. The storage would have cost $50 to $80 a week, which over the storage period of a month would have been $320, which is a total of $1,800.
Further, there would have been a cost of transport and storage for the car. A truck to transport the car may have been $580, the barge $200, and the storage $200.00. A total of $1000. Total costs would have been $2,800 and therefore, $1,000 that excludes again the cost of selling the goods. That would have been another exercise to add further expense. I consider on the available evidence before me that they never were reasonable grounds for it to be determined that the goods could be disposed of and that the owner was within his rights to do so. I am conscious of the great disadvantage that has occurred to Ms Cullen in coming to this decision. It is truly a regrettable situation, but I am obliged to follow the law as I see it and to accept the most probative evidence here which I consider is the evidence of Mr Nelson.
It is against these findings of fact the application for leave to appeal or appeal must be considered. As this is an appeal brought under s 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 in respect of a decision in a proceeding for minor civil dispute, an appeal may be made only if the party has obtained leave of the Tribunal. Leave to appeal will usually only be granted where there is a reasonable argument the decision was attended by error, or that an appeal is necessary to correct the substantial injustice caused by the error.[2] Further in Rintoul v State of Queensland & Ors [2018] QCA 20 at [10] the Court of Appeal reiterated the general principles:
The principles governing a grant of leave to appeal are well-established. In short, an applicant for leave to appeal must show:
(a) the appeal is necessary to correct a substantial injustice;
(b) there is a reasonable argument that there is an error to be corrected.
There must be reasonable prospects of success to warrant a grant of leave. Therefore, in deciding whether to grant leave to appeal the Court usually makes some preliminary assessment of the prospects of the proposed appeal.
[2]Terera & Anor v Clifford [2017] QCA 181.
The appeal is not another opportunity for the parties to re-argue the case that was before the original decision maker. Also, findings of fact made by the original decision maker will not be disturbed unless the findings were not open on the evidence before the Tribunal. The appeal tribunal will only disturb a finding of fact if there is good reason to do so, as the High Court said in Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22 at [43]:
A court of appeal conducting an appeal by way of rehearing is bound to conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings[3]. But a court of appeal should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by "incontrovertible facts or uncontested testimony", or they are "glaringly improbable" or "contrary to compelling inferences". [footnotes omitted].
It is evident from the transcript of the proceeding that the learned adjudicator gave careful consideration to the applicant’s predicament. She expressed concern about the outcome of the case for her. However, she relied on the only independent evidence of value available in coming to her decision which she was clearly entitled to do. In these circumstances and in reliance on the authority cited above, there is no basis upon which the appeal tribunal can intervene as no error has been demonstrated.
In those circumstances, leave to appeal must be refused.