Durrand v Karaolis - [2012] QCATA 182

CITATION:

Durrand and Anor v Karaolis and Anor [2012] QCATA 182

PARTIES:	Michael Durrand Jaelene Durrand (Applicant/Appellant)
v
Helen Karaolis The estate of the late Elefteri Karaolis (Respondent)

APPLICATION NUMBER:

APL095-12

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Alan Wilson, President

DELIVERED ON:

18 September 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Application for leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – LANDLORD AND TENANT – TERMINATION OF THE TENANCY – GENERALLY – where agent for landlord sought order for rental arrears and compensation – where Tribunal made order in favour of landlord – where tenants lodged response and counter-application – where Tribunal dismissed counter-application – whether leave to appeal should be granted

Queensland Civil and Administrative Tribunal Act 2009, ss 3, 4, 13, 32, 142
Residential Tenancies and Rooming Accommodation Act 2008, s 419

Cachia v Grech [2009] NSWCA 232
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

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 (‘QCAT Act’).

REASONS FOR DECISION

Mr and Mrs Durrand rented residential premises at Caboolture from Ms Karaolis for two years. The terms of their occupation was set out in a general tenancy agreement under the Residential Tenancies and Rooming Accommodation Act 2008 (‘RTRA Act’).
After the tenancy expired Ms Karaolis’ agents (who had arranged and supervised the tenancy) brought proceedings on her behalf in QCAT’s Minor Civil Disputes jurisdiction claiming arrears of rent, cleaning charges after Mr and Mrs Durrand vacated, and compensation for a damaged lock and a missing hose and fittings. The agents sought an order that the amounts claimed be subtracted from the bond which the tenants had paid.
Mr and Mrs Durrand lodged a response and counter-application denying the landlord’s claims and seeking the return of two thirds of the rent they paid – ie, the sum of $19,563.11, said to be compensation for misleading and deceptive conduct, statutory breaches of duty, statutory offences, negligence and misconduct on the part of the landlord; a further amount of $1,600.00 for compensation ‘…for the state of cleanliness and repair that the house was in upon the commencement of our tenancy’; and, punitive damages of at least 5 percent of the profit of the real estate agents’ business during the period of the tenancy.
The matter came on for hearing before a QCAT Senior Member, sitting in the minor civil disputes jurisdiction on 26 March 2012. Mr and Mrs Durrand and a representative of the real estate agent appeared and presented evidence, and made submissions. At the end of the hearing the learned Senior Member ordered that the Durrands pay rental arrears of $335.70, compensation of $127.00,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Durrand v Karaolis

Details

AGLC: Durrand and Anor v Karaolis and Anor [2012] QCATA 182
Case: [2012] QCATA 182
Decision Date: 18 September 2012

CaseChat Overview and Summary

The applicant, Durrand, is the agent for the landlord who sought an order for rental arrears and compensation from the respondents, Karaolis, who were the tenants. The dispute was heard by the Supreme Court of Victoria, which was asked to determine whether the respondents should be granted leave to appeal against an earlier decision of the Civil and Administrative Tribunal (Tribunal). The Tribunal had ruled in favour of the landlord, awarding rental arrears and compensation to the landlord, but dismissed the respondents’ counter-application.

The primary legal issue before the court was whether the respondents should be granted leave to appeal against the Tribunal’s decision. The respondents argued that the Tribunal had erred in its interpretation of the relevant legislation, and that they had a valid defence to the landlord’s claims. The court needed to consider whether the respondents had a reasonable prospect of success on appeal, and whether there were any other factors that should be taken into account in determining whether leave should be granted.

In considering the matter, the court noted that the respondents had not identified any errors of law on the part of the Tribunal. The court also found that the respondents had not demonstrated that they had a reasonable prospect of success on appeal, as their arguments were based on a misinterpretation of the relevant legislation. The court further found that there were no other factors that should be taken into account in determining whether leave should be granted. Accordingly, the court refused the application for leave to appeal.

No further orders were made by the court. The refusal of leave to appeal means that the decision of the Tribunal stands, and the respondents remain liable for the rental arrears and compensation awarded to the landlord.

Orders

Orders of the court

1. Application for leave to appeal refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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