| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : DENG -v- MANAGH [2013] WADC 58 CORAM : DERRICK DCJ HEARD : 24 APRIL 2013 DELIVERED : 24 APRIL 2013 PUBLISHED : 26 APRIL 2013 FILE NO/S : APP 1 of 2013 BETWEEN : KY DENG Appellant
AND
JOSHUA MANAGH
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE SHARRATT File No : RSTN 12380 of 2012, RSTN 12381 of 2012 Catchwords: Appeal from Magistrates Court – Appeal against order made under the Residential Tenancies Act 1987 (WA) – Right to appeal – No jurisdiction to hear appeal
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Legislation: District Court Rules 2005 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Magistrates Court (Minor Case Procedures) Rules 2005 (WA)
Magistrates Court Act 2004 (WA)
Residential Tenancies Act 1987 (WA)
Residential Tenancies Regulations 1989 (WA) Result: Appeal struck out
Representation: Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : Not applicable
Respondent : Not applicable
Case(s) referred to in judgment(s):
Schaefer v Department of Housing [No 2] [2012] WASCA 229
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1 DERRICK DCJ: [This judgment was delivered extemporaneously and has been edited from the transcript.]
2 The appellant appeals against an order made by a magistrate in determining an application made by the appellant against the respondent under the Residential Tenancies Act 1987 (WA) (the Act).
Background 3 The appellant is the owner of premises situated at 10 Bellport Parade in Mindarie (the premises). 4 On 15 April 2011 the appellant leased the premises to the respondent and a Mr Shane Merrick for a fixed term of 12 months (the first lease). The Standard Residential Property Lease document for the first lease was signed by the appellant, the respondent and Mr Merrick on 22 April 2011. 5 On 16 April 2012 the appellant leased the premises to the respondent, a Ms Jasmine Managh and a Mr Ross Russell for a fixed term of four weeks (the second lease). The Standard Residential Property Lease document for the second lease was signed by the appellant, the respondent, Ms Managh and Mr Russell on 12 April 2012. 6 On 2 November 2012 the appellant instituted proceedings in the Magistrates Court under the Act against the respondent and Mr Merrick by way of an 'Application for Court Order Form 12' (the first application). Form 12 is not a form which is included in the Residential Tenancies Regulations 1989 (WA) (the Regulations). It is presumably a form made and approved by the Chief Magistrate under s 48(2)(r) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (the MCCPA) and r 77 of the Magistrates Court (Minor Cases Procedure) Rules 2005 (WA) (the MCPR). It is the form which the Magistrates Court website indicates should be used by a person making an application to the court for an order under the Act. 7 In the first application the appellant alleged that the respondent and Mr Merrick had breached various clauses of the first lease and claimed compensation for loss allegedly suffered by her as a result of each of the breaches. The alleged breaches consisted in the main of damaging the premises or items in the premises and failing to properly maintain the premises. The total amount of compensation claimed by the appellant was $6,927.95. (Page 4)
8 Also on 2 November 2012 the appellant instituted separate proceedings in the Magistrates Court under the Act against the respondent, Ms Managh and Mr Russell by way of an 'Application for Court Order Form 12' (the second application). In the second application the appellant alleged that the respondent, Ms Managh and Mr Merrick had breached various clauses of the second lease and claimed compensation for loss allegedly suffered by her as a result of each of the breaches. Again, the alleged breaches consisted in the main of damaging the premises or items in the premises and failing to properly maintain the premises. The total amount of compensation claimed by the appellant was $3,755.75. 9 The hearing of the first application and the second application took place before his Honour Magistrate Sharratt on 17 December 2012. In accordance with s 22(1) of the Act the appellant, the respondent and Ms Managh appeared in person. Mr Merrick and Mr Russell did not appear at the hearing. 10 The magistrate found that some of the alleged breaches of both the first lease and the second lease had been proved while other alleged breaches had not been proved. His Honour awarded to the appellant individual amounts as compensation for loss suffered by the appellant as a consequence of each of the breaches which he found had been established. 11 The amount awarded by the magistrate to the appellant on the first application was $1,775.28 which included $26.70 for court costs (ts 78 - 81). The amount awarded by the magistrate to the appellant on the second application was $939.59 which also included $26.70 for court costs (ts 121 - 123). Therefore, his Honour awarded to the appellant a total of $2,714.87. To give effect to this award his Honour, with the agreement of the parties, ordered in relation to the first application and the second application that the Bond Administrator, who was holding a bond of $4,000, pay $2,714.87 to the appellant to discharge the 'vacated debt' and pay the balance of the bond, namely $1,285.13, to the respondent (ts 123 - 124). 12 The order made by the magistrate was on 17 December 2012 recorded on two 'Form 15 Residential Tenancies Act 1987 (WA) Order' forms, one for the first application and one for the second application. Each of the Form 15s were signed by the registrar on 17 December 2012 and issued to the appellant, the respondent and the Bond Administrator. Form 15, like the above referred to Form 12, is not a form which is included in the Regulations. It is presumably a form made and approved (Page 5)
by the Chief Magistrate under s 48(2)(r) of the MCCPA and r 77 of the MCPR.
The appeal 13 On 3 January 2013 the appellant, in purported reliance on s 32 and s 40 of the MCCPA, filed a Notice of Appeal against the decision of the magistrate awarding the appellant $2,714.87 (the notice). The notice contains seven grounds of appeal. Five of the pleaded grounds challenge the decision made by the magistrate in relation to one of the appellant's claims the subject of the first application. The remaining two grounds challenge the decision made by the magistrate in relation to one of the appellant's claims the subject of the second application.
No right of appeal 14 For reasons which I will now state it is my view that the appeal cannot succeed. 15 Section 15(1) of the Act relevantly provides: Where an owner or tenant under a residential tenancy agreement … claims that a breach of the agreement has occurred or that a dispute has arisen under the agreement, he may apply for relief to a competent court. 16 Section 15(2) relevantly provides: 17 The term 'residential tenancy agreement' used in s 15(1) is relevantly defined in s 3 of the Act to mean 'any agreement, whether express or implied, under which the person for valuable consideration grants to any other person a right to occupy, whether exclusively or otherwise, any residential premises … for the purpose of residence'. Accordingly, the first lease and the second lease were residential tenancy agreements within the meaning of the Act. (Page 6)
18 The term 'competent court' is defined in s 3 of the Act, in relation to an application made under the Act, to mean a court that under s 12A or s 13 has jurisdiction to hear and determine the application. 19 Section 12A of the Act provides as follows: 20 Section 12 of the Act relevantly defines 'prescribed dispute' to mean 'any matter that may be the subject of an application under this Act, other than an application made under this Act that is, or involves, a claim for an amount over the prescribed amount …'. The term 'prescribed amount' is defined in the same section to mean '$10,000 or such other amount as may be prescribed'. No other amount has been prescribed. Therefore the prescribed amount for the purposes of the Act is $10,000. 21 In each of the first application and the second application the appellant claimed amounts less than $10,000. Accordingly, if the matters the subject of each of the first application and the second application were matters that could be the subject of an application under the Act, they were 'prescribed disputes' as defined by s 12. 22 As I have already indicated the appellant, in the first application and the second application, claimed that the respondent had breached the first lease and the second lease respectively. The first lease and the second lease were 'residential tenancy agreements'. It follows that the dispute between the appellant and the respondent the subject of the first application and the dispute between the appellant and the respondent the subject of the second application were matters that could be the subject of an application under s 15(1) of the Act and were therefore 'prescribed disputes' within the meaning of the Act. Given that the first application and the second application were 'prescribed disputes', the Magistrates Court, by reason of s 12A(1) of the Act, had exclusive jurisdiction to hear and determine the first application and the second application. Consequently, the Magistrates Court by definition was a competent court for the purposes of s 15(1) of the Act. (Page 7)
23 During the hearing of the appeal the appellant submitted that the first application and the second application were in substance one application and should not be treated, for the purposes of determining if the amount of the claim was below $10,000, as separate applications. Given that the first application was based on the provisions of the first lease and the second application on the provisions of the second lease, I do not accept this submission. In any event nothing turns on the issue in the circumstances of the present case. Even if it is accepted for the sake of the argument that the first application and the second application should be treated as one application with the consequence that the dispute was not a 'prescribed dispute' within the meaning of s 12A(1) because the amount claimed was in excess of the 'prescribed amount', the Magistrates Court was still a competent court for the purposes of s 15(1) because it had jurisdiction to deal with an application involving a claim in excess of $10,000 by virtue of s 13(1) of the Act. 24 In summary, the appellant had the right under s 15(1) of the Act to apply to the Magistrates Court for relief. This is, of course, precisely what she did in filing the two Form 12 applications. 25 This brings me to s 26 of the Act. Section 26 provides as follows: (1) An order made by a court under this Act is final and binding on all parties to the proceedings in which the order is made and on all persons who under this Act could have become entitled to be joined as a party to the proceeding in which the order is made, and no appeal shall lie in respect thereof. (2) No declaratory judgment shall be given and no order shall be made under section 36 of the Magistrates Court Act 2004 in respect of proceedings taken or to be taken under this Act in the Magistrates Court or any order made in such proceedings by that court, unless the Supreme Court is satisfied that the Magistrates Court had or has no jurisdiction conferred by or under this Act in respect of the proceedings or that a party to the proceedings has been denied natural justice. (3) This section applies despite Part 7 of the Magistrates Court (Civil Proceedings) Act 2004. 26 Given that the first application and the second application were properly made to the Magistrates Court under s 15(1) of the Act, the order made by the magistrate on the applications, which was of course founded on the decisions made by the magistrate in respect of each of the individual claims made by the appellant in the applications, was an order made by the Magistrates Court under the Act, specifically s 15(2)(c) of the (Page 8)
Act. Accordingly there is, by reason of s 26(1) and s 26(3) of the Act, no right to appeal against either the decisions made by the magistrate in relation to the individual claims forming part of the first application and the second application or the final order made in respect of the applications. This is so notwithstanding pt 7 of the MCCPA: Schaefer v Department of Housing [No 2] [2012] WASCA 229 [12]. 27 For the reasons stated I have no jurisdiction to hear the appellant's appeal. The appeal must therefore be struck out.
Merits of grounds of appeal 28 Despite my conclusion that the appeal must be struck out, I propose for the benefit of the appellant to make some brief remarks about the substantive merits of her grounds of appeal. The fact that I have decided to make these remarks should not be seen as indicating that I am unaware of the difficulties that the appellant would have, if I did have jurisdiction to hear the appeal, in establishing that her grounds of appeal were grounds which fell within the scope of s 32 of the MCCPA.
Claim for damage to driveway and garage – grounds 1 to 5 29 One of the allegations made by the appellant in the first application was that the respondent and Mr Merrick had stained the driveway and garage floor of the premises with grease and oil and, contrary to the provisions of the first lease, had failed to repair the damage caused by the staining. The appellant claimed compensation in the amount of $3,417 in respect of this alleged breach being the amount she had paid to repair the damage to the driveway and garage floor. 30 In support of this aspect of her claim the appellant called a Mr Brian Townsend to give evidence. Mr Townsend was employed by a business called 'Star Spray On Paving' (Star Paving). 31 In his evidence, which was given primarily in answer to questions asked by the magistrate, Mr Townsend said that he undertook concrete re-surfacing and specialised in cleaning and concrete coatings (ts 33). He said that he tried to clean the stains off the driveway and garage floor at the premises but that they 'basically' had not come off (ts 32). He said that the problem with oil stains on concrete is that concrete is very porous (ts 32). He said that he did use a 'penetrating degreaser to penetrate in and pressure clean' the stains off 'but once a stain has been on there a while, you can get rid of the surface oil, but the stain is very, very difficult to remove' (ts 32). (Page 9)
32 Mr Townsend said in his evidence that the concrete forming the driveway and garage floor of the premises was pretty new but had not been sealed (ts 33). He said that 'nowadays' a lot of people get their new driveway sealed although not everybody does (ts 37). He said that it is better to seal the concrete if you are putting in a new driveway (ts 37). 33 Mr Townsend also said in his evidence that he had re-surfaced the concrete of the driveway and garage floor at the premises (ts 33). He said he did this by pressure cleaning the driveway and garage and then spraying on a thin layer of colour concrete over the top of the existing concrete to hide the marks that were there (ts 33 - 34). He agreed with the proposition put to him by the magistrate that the work that he had performed cost the appellant $3,417 (ts 34). 34 After questioning Mr Townsend and allowing the appellant and respondent to do the same, the magistrate reserved his decision in relation to the appellant's claim for the cost of repairing the driveway and garage floor. His Honour delivered his decision later during the hearing after the luncheon adjournment. His Honour found that the driveway and garage floor was in good and clean condition prior to the commencement of the first lease (ts 78). His Honour then continued as follows (ts 78 - 79): We have heard from the tenants that they have attempted to fix this themselves, and they have sprayed it with degreaser and done the best that they can, and the expert himself tried to spray it with degreaser and he has done the best he can, and he has told us that the driveway's concrete was not sealed. Now, people are going to park their cars on driveways. That is just the way it goes. That is what they are for, and people are going to park their cars in garages, and that is what garages are for, and vehicles can be expected to leak oil because that is what they do. However, there is a special condition in the lease attached to the lease itself which says the following at item number 30:
'The tenants agree to place drip-trays on the carport, driveway, garage, to prevent any oil, grease and petrol leaks from motor vehicles if applicable. Failure to do so will result in the tenant being charged for the removal of any staining.'
So we know that in some ways it's perhaps unwise of the applicant to lease a property with very porous concrete, especially in the driveway areas where people park cars. But she is protected by this provision which the tenants signed … While the stainings were not able to be removed and the only way in which the applicant could fix the ugly looking stains was to get the whole (Page 10)
driveway area, including the council crossover and garage, re-coated with sealed surface at cost, a huge cost, of - well perhaps a disproportionately large cost of $3,500. Now she has got a completely different surface to the one that was there before. Now, despite the breach by the tenants of that provision of the special condition of the lease, the sum of $3,500 is disproportionate and basically what has happened is that the applicant has now got a fresh new surface on her driveway … [I] didn't hear anything else about any other efforts that could have been made to remove the grease short of a re-surfacing. I am not going to allow the whole of that amount, or anywhere near it, on this matter, but I do have to acknowledge the breach by the tenants to clause 30 of the special conditions and come to a sum, and I will make that sum $700. 35 It is the magistrate's decision on the appellant's claim for compensation for the damage to the driveway and garage floor of the premises to which grounds 1 to 5 in the notice relate. Grounds 1 to 5 as pleaded are as follows: 1. The Magistrate erred in finding that the amount of $3,417 was the cost of new concrete driveways and garage floor. 2. In actual fact, the amount was less than 1/3 of the cost of replacing the stained driveways and garage floor with a new one. 3. The Magistrate did not take into account the tax invoice tendered by the appellant as evidence that the cost was for removing stains and cover up stain marks on the driveways and garage floor by resurface/seal. 4. The Magistrate did not take into account the resurface or seal has a limited life of 5 years. 5. The Magistrate did not take into account the driveways and garage floor were not surfaced or sealed before the defendant recklessly covered them by stains. Now, the driveways and garage floor have to be resurfaced or sealed regularly in order to keep the stain marks under cover which is an ongoing expense imposed upon the appellant. 36 I will now deal with each of the appellant's above grounds of appeal. 37 With respect to grounds 1, 2 and 3, the thrust of the complaint made by the appellant in these grounds is that the Magistrate made an error in finding that the amount of $3,417 paid by the appellant to Star Paving was the cost of installing a new concrete driveway and garage floor as opposed to the cost of re-surfacing the existing driveway and garage floor. The tax (Page 11)
invoice referred to in ground 3 is dated 9 September 2012 and was tendered as exhibit 7. The invoice, which was tendered at the completion of Mr Townsend's evidence, reveals that the total amount paid by the appellant for the re-surfacing of the driveway and garage floor was $3,417. The invoice was therefore consistent with the evidence given by Mr Townsend as to the amount paid by the appellant for the re-surfacing work that he performed for her. 38 I do not accept that the magistrate made the error alleged in grounds 1, 2 and 3. In my opinion the magistrate's statements that 'the only way in which the applicant could fix the … stains was to get the whole driveway area, including the council crossover and garage, recoated with a sealed surface at a cost … of $3,500' and that 'the applicant has now got a fresh new surface on her driveway' reveal that his Honour, in assessing the amount of compensation to be awarded to the appellant, appreciated and found that the amount paid by the appellant for the repair of the driveway and garage was the cost of the re-surfacing of the driveway and garage floor as opposed to the cost of laying a completely new driveway and garage floor. 39 As to ground 4, the appellant in her oral submissions relied on a 'quote/tax invoice' issued to her by Star Paving dated 28 May 2012. On the back of this document were Star Paving's terms and conditions of sale. Clause 8 of the terms and conditions provided that Star Paving guaranteed its work for five years against cracking of the paving due to ultraviolet light, peeling of the paving coating due to ultraviolet light, and growth of moss, algae and fungal on the paving, provided the after-care instructions specified in cl 9 of the terms and conditions had been followed. The appellant contended on the basis of this guarantee that the re-surfacing of the driveway and garage floor which had been undertaken had a life span of only five years. 40 There was no evidence before his Honour at the time that he delivered his decision that the re-surfaced driveway and garage had a limited life of five years. Specifically, the Star Paving quote/tax invoice dated 28 May 2012 was not tendered or referred to during the trial. Accordingly, it cannot be said that his Honour made an error in failing to take into account the fact asserted in the ground of appeal, namely that the surface or seal had a limited life of five years. 41 Further, putting to one side the issue that the appellant would on the hearing of any appeal need to obtain leave to rely on the quote/tax invoice dated 28 May 2012 (the MCCPA, s 40(4), s 40(5)), the document does not (Page 12)
in my view provide a basis for finding that the surface or seal had a limited life of five years. The terms of the five-year guarantee do not, in my view, by themselves provide a basis for this conclusion. Moreover, there is nothing else in the terms and conditions of sale stated in the document which supports a conclusion that the driveway and garage floors will have to be re-surfaced in five years. 42 In relation to ground 5, I do not accept that the magistrate failed to take into account that the driveway and garage floor of the premises were not surfaced or sealed before they were stained by the respondent and Mr Merrick. The magistrate, in delivering his decision, made express reference to the fact that Mr Townsend had given evidence that 'the driveway's concrete was not sealed'. His Honour also stated that it was 'perhaps unwise of the applicant to lease a property with very porous concrete'. In light of these statements I am satisfied that the magistrate, in assessing the amount of compensation to be paid to the appellant, at all times appreciated and took into account that the driveway and garage floor had not been re-surfaced or sealed prior to the staining occurring. 43 For the reasons stated, if I had jurisdiction to deal with the appeal I would not have found that the magistrate made any of the errors alleged in grounds 1 to 5 of the notice. I would therefore have dismissed each of these grounds of appeal.
Claim for damage to front door 44 One of the allegations made by the appellant as part of the second application was that one or more of the respondent, Ms Managh and Mr Russell, had breached a clause of the second lease by damaging the front door of the premises. Specifically, the appellant alleged that one or more of the respondent, Ms Managh and Mr Russell had tried to break the door and in doing so had cracked the door. The appellant alleged that the crack had resulted in air and moisture seeping into the door which in turn caused the door to rust. The appellant did not as part of her claim specify when the door had been broken. The appellant claimed compensation in the amount of $1,600 for the damage to the door this amount being the estimated cost of repairing the door. 45 In dismissing this aspect of the appellant's claim the magistrate said the following (ts 102): As far as the estimated cost of repair, being the front entry door, I can't accept that sum of 1600. That might be the estimated cost of repair, but on the second lease these people were in occupation for five weeks. To say (Page 13)
that during that time the door has been broken, or kicked, to cause this, allowing air and sea water in to eventually ruin the door within the five weeks of their lease is clearly very hard for the applicant to demonstrate. She bears the burden of proof. I can’t make an order on supposition alone, and so I disallow that $1600. 46 It is the magistrate's decision in refusing to allow the claim in respect of the damage to the front door which is the subject of grounds 6 and 7 pleaded in the notice. Grounds 6 and 7 are in the following terms: 47 The references in grounds 6 and 7 to lease 1 and lease 2 are references to the first lease and the second lease respectively. 48 The substance of the complaint made in grounds 6 and 7, as I understand it, is that the magistrate erred in not allowing the claim for the damaged front door when the evidence before him established that the respondent had occupied the premises not just for the term of the second lease but also throughout the term of the first lease. 49 It does not appear to me from reviewing the transcript that his Honour did make a positive finding that the claim in respect of the damage to the front door could be made under the first lease. Leaving this issue aside, the fact of the matter is that the claim was made as part of the second application in reliance on a provision of the second lease. There was no reference to the claim as part of the first application. In other words, regardless of the fact that the respondent was an occupant, or even sole occupant, of the premises during the term of the first lease and the term of the second lease, the appellant's case as presented to the magistrate was that the front door was damaged in breach of only the second lease. In these circumstances I do not consider that the magistrate made an error in concluding that the claim could not be allowed because the appellant had failed to establish that the damage was caused to the door during the term of the second lease. In short, I do not accept that the magistrate erred in the way alleged by the appellant. It follows that if I had jurisdiction to deal with the appeal I would have dismissed grounds 6 and 7. (Page 14)
Order 50 The order that I make is that the appeal is struck out pursuant to r 57(2)(b) of the District Court Rules 2005 (WA).
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