Darlington v LJ Hooker Port Douglas

[2014] QCATA 144

CITATION: Darlington v LJ Hooker Port Douglas [2014] QCATA 144

PARTIES:	Damien Darlington Allyson Bennett (Applicants/Appellants)
v
LJ Hooker Port Douglas (Respondent)

APPLICATION NUMBER: APL345-13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Thomas, President

DELIVERED ON: 20 June 2014

DELIVERED AT: Brisbane

ORDER MADE: The application for leave to appeal is refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL –RESIDENTIAL TENANCY DISPUTE – whether grounds for leave to appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 142(3)(a)(i)
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 419(3)

Pickering v McArthur [2005] QCA 294, applied

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

1. Mr Darlington and Ms Bennett rented a house at Port Douglas through LJ Hooker Port Douglas. They identified problems with the house from the start of the tenancy in April 2012. In particular, they could not get a fixed line telephone service, the electricity service required work and the driveway access was poor.

2. There was some discussion between the parties about compensation or rectification of some matters. Unfortunately, the parties could not reach agreement.

3. Mr Darlington and Ms Bennett issued notices to remedy breach in November and December 2012. In February 2013, they lodged a dispute resolution request with the Residential Tenancies Authority. In March 2013, they filed a claim in the tribunal for $17,080, which had various components. A Magistrate, sitting as a member of the tribunal, dismissed their claim on various bases which included:

   · Certain claims were not made within 6 months after the tenant became aware of the breach (as required by s 419 Residential Tenancies and Rooming Accommodation Act 2008 (Qld).

   ·        The learned Magistrate did not accept the evidence as to some of the damages.

   ·        The learned Magistrate did not accept that the premises were uninhabitable and as to that issue, there was no evidence as to appropriate reductions in rental.

4. Mr Darlington and Ms Bennett want to appeal that decision. Their only ground of appeal is: ‘On the basis Magistrate mistook a maintenance request as a Breach notice – Application was made within time limits set’. This ground relates to only one component of the claim.

5. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] The principles the appeal tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as his Honour then was) in Pickering v McArthur:

   There are numerous authorities, in varying language but with unvarying emphasis, that 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][2005] QCA 294 at [3].

6. In response to a direction to file submissions in support of the application for leave to appeal, Mr Darlington and Ms Bennett have simply reproduced the material which was before the learned Magistrate. This approach is inadequate and unhelpful. It is not for the appeals tribunal to second-guess an applicant’s grounds for appeal or to search the original decision and/or the file for error. In relation to the appeal, it is incumbent upon Mr Darlington and Ms Bennett to articulate where the errors in the decision are said to have occurred.

7. For the sake of completeness, I will attempt to deal with what I consider is the point of Mr Darlington and Ms Bennett’s appeal. Section 419(3) is clear: an application about a breach of agreement must be made within 6 months after the person becomes aware of the breach. The evidence showed that Mr Darlington and Ms Bennett were aware of the breaches almost as soon as they took possession of the house. The learned Magistrate deals with a submission which appears to be along the lines of the ground of appeal when he comments, ‘Ms Samson continues to impress upon me that… the notice to repair the phone line did not come in until 12 November but the applicant’s evidence is clearly that these matters … came to their attention immediately upon moving in’.

8. The learned Magistrate found that Ms Bennett and Mr Darlington were aware of the breaches as soon as they moved into the house and so the application was not made within the 6 month period.  This finding was open to the learned Magistrate on the evidence and there is no reason to upset that finding.

1. There is no reasonably arguable case that the learned Magistrate was in error. Leave to appeal should be refused.