Damiano v Bargara Real Estate

[2013] QCATA 233

CITATION: Damiano v Bargara Real Estate [2013] QCATA 233

PARTIES:	John Damiano Judith Damiano Megan Damiano (Appellants)
V
Bargara Real Estate (Respondent)

APPLICATION NUMBER: APL153-13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Hon K Cullinane QC, Judicial Member

DELIVERED ON: 21 August 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1.   Leave to appeal is refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where the Applicants leased premises managed by the Respondent – where the Applicants commenced proceedings in the Tribunal concerning the state of the premises – where the Respondent brought a counter-application for rent arrears – where the Tribunal dismissed the Applicants’ claim and allowed the Respondent’s application – where the Tribunal ordered the payment money from rental bond to the Respondent – where the Applicants seek to appeal that decision – whether leave to appeal should be granted

Queensland Building Services Authority v Macdonald [2012] QCATA 237, cited

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. This is an application for leave to appeal from a decision of the Tribunal delivered on 12 March 2013. The matter is a minor civil dispute and thus under s 142(3)(a)(i) of the Queensland Civil  and Administrative Tribunal Act 2009 leave to appeal is necessary.

1. The Applicants were tenants of certain premises situated at the Esplanade Bargara.

1. They complained of various matters concerning the state of the premises and the behaviour of the Respondent.

1. By a counter-claim the Respondent made a claim in relation to rental claimed to be owing.

1. The Tribunal dismissed the Applicant’s claim and ordered that certain moneys be paid to the Respondent. Some of these were held in the form of bond by the Residential Tenancies Authority.

1. To obtain leave to appeal it is necessary to show some good reason for the grant of such leave.

1. In Queensland Building Services Authority v Macdonald [2012] QCATA 237 at [9] the principle was stated:

Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief.

1. The outline of argument largely involves a restatement of the various complaints made by the applicants.  The Respondent’s outline then took the form of a point by point answer to the Applicant’s outline.

1. The Tribunal dealt with each of the Applicants’ claims. It found in each case against the Applicants.

1. The largest claim related to damage to a lounge suite said to have been caused by leaking from an air conditioner.  The suite was some six years old. The Respondent fixed the lounge. The claim made related to a time towards the end of occupation.  This commenced in January 2012 and finished in mid-October 2012. Notice to leave was given which expired on 10 December 2012.

1. The Tribunal was not prepared to accept the claim which related to the lounge which on the allegations was placed in the same position where damage had been caused to it before.

1. The Tribunal found that the Applicants had not satisfied the standard of proof in relation to this claim.

1. In its reasons the Tribunal noted that the written lease agreement tendered was entered into after the Applicants had been in occupation for some time when they would have been well aware of the ventilation problem about which a complaint was made.  The Tribunal made findings that purported damage to personal items could not be sheeted home to the Respondent.

1. Similarly the Tribunal found that the problem with the key cards and the lift were not matters for which the Respondent could be held responsible.

1. A claim for rent reduction because of an allegedly malfunctioning hair drier failed because the arrangement made to have the drier inspected was not carried through and the Applicants purchased their own. An “unquantified” claim for this was dismissed.

1. The Tribunal found that the Respondent’s counter claim for rental was made out.

1. Two complaints were made about the conduct of the proceedings.  It was alleged by the Applicants that the Respondent’s counter claim was notified to them only on the day before the hearing and they had insufficient time to answer the claim.  The transcript shows however that Mrs Damiano who appeared for the applicants told the Tribunal that she was “quite happy to proceed”.

1. The second issue concerned the Tribunal’s “refusal” to accept a letter from a person which provided support for the Applicants claims about the respondent’s conduct. The Tribunal took the view the letter should not be received if the maker was not available for cross-examination.  This is not something of which complaint might be legitimately made.

1. None of the matters raised by the applicants justify the grant of leave.  They are largely factual. The procedural complaints are without substance. The Tribunal before whom the witnesses appeared was not satisfied the applicants claims were made out.

1. The application for leave to appeal is refused.