French v Bruce
[2012] QCATA 213
•25 October 2012
| CITATION: | French and Anor v Bruce and Anor [2012] QCATA 213 |
| PARTIES: | Heath French Michelle Ross (Appellants) |
| v | |
| Warwick Bruce Tracey-Anne Bruce (Respondents) |
| APPLICATION NUMBER: | APL106-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 22 October 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 25 October 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for leave to appeal is refused. |
| CATCHWORDS: | LANDLORD AND TENANT – ACTIONS AND CLAIMS FOR USE AND OCCUPATION – where landlords awarded compensation for damage to property – where tenants appealed award on grounds that financial settlement had already been reached – whether financial settlement was in full and final satisfaction of the matters between the parties – whether any appellable error shown Queensland Civil and Administrative Tribunal Act 2009, ss 3, 20, 32, 142(3) Residential Tenancies and Rooming Accommodation Act 2008, ss 65, 66 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Drew v Bundaberg Regional Council [2011] QCA 359 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 |
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
On 7 March 2012 at Coolangatta, Mr Crawford, Adjudicator, awarded Mr and Mrs Bruce (the Landlords) $4,623 by way of compensation for damage to their unit at Mermaid Beach during the tenancy of French and Ross (the Tenants). At the same time a smaller award was made against one Deaken Sande, who does not seek leave to appeal.
The Tenants recognise that they have no appeal as of right, and that leave to appeal is required.[1] The relevant criteria are summarised below.
[1] Queensland Civil and Administrative Tribunal Act 2009, ss 142(3) (a)(i), 142(3)(b).
In summary, the grounds of appeal are that:
a) The award against them includes amounts already paid (according to a compromise);
b) Amounts have been awarded for certain items not noted in the relevant Exit Condition Report[2], or in a “financial settlement or insurance claim”; and
c) Accordingly, the award should be wholly set aside.
[2]Issued in Form 14a, required by the Residential Tenancies and Rooming Accommodation Act 2008, ss 65 and 66.
The Appellants were represented at the hearing by Ms Julie French, mother of the first-named Appellant, who stated that work commitments prevented both Tenants from making the 200 km return journey from Coolangatta to Brisbane. The Landlords undertook a 900 km return journey from Moree to Brisbane to appear in person.
Evidence and Findings
According to the Tenants’ representative, the Tenants during September 2011 agreed to pay the Landlords $2,960 “for the security, the lock on the door”, $2,000 for damage in the bedroom, and $200 for repairs to furniture. Items removed from the unit, including clothes airing racks, a mop and a bucket, were returned to the Landlords. The Tenants then believed that the Landlords’ claim was “finalised”.[3]
[3] Transcript of hearing (T) 7 March 2012 pages 23-24.
The Landlords disputed that contention. They said that, after taking legal advice, they decided “to accept whatever money was being offered without signing [our] rights away [and] then take the matter further”. The agreement was not a final settlement; on the contrary, disputed items were to be “refer[red] to the Real Estate”.[4]
[4]T page 24. “Real Estate” is presumably a reference to the Landlords’ agent, who may refer a continuing dispute to the Residential Tenancies Authority.
An Exit Condition Report[5] prepared by the agent, John Henderson Professionals, dated 12 August 2011, is endorsed (presumably by the agent) “not completed or returned by tenants”.[6] That document lists several damaged items apart from those conceded by the Tenants, including carpets, a blind and kitchen equipment.
[5] Residential Tenancies and Rooming Accommodation Act 2008, s 66.
[6] Attachment “B” to Tenants’ leave application.
A letter from the Landlords to the Tenants dated 12 September 2011 is in evidence. It reads in part: “[W]e accept your offer for the items you accept responsibility for and at your request we will refer the additional items[7] to the Real Estate” (emphasis added).
[7]The following items were “referred”: blind repairs, range hood replacement, carpets in some areas, furniture repair (part), loss of rent, cleaning of lounge: memorandum Tenants to Landlords 9 September 2011.
In light of that correspondence, the Adjudicator rejected the submission of a full and final settlement, and held that the payments made on or before 12 September 2011,
“simply [covered] ... items up to that point that they could agree upon. There was a balance of other matters, which they referred to the Real Estate ... There is no indication on the face of that document of any word such as, `This is in full and final satisfaction of all matters between the parties’”.[8]
That is an impeccable finding. From that point the question was whether the Tenants were responsible for any other damage (as distinct from fair wear and tear) and, if so, the quantum.
[8] T page 37.
Referring to the Exit Condition Report, the Landlords alleged damage to blinds[9], floor coverings, stove, kitchen exhaust fan and power points, confirming that invoices or quotations were held for all such items.[10] There was also an insurance excess of $1,200.[11] It was suggested that a rowdy and crowded “party” or parties caused much of the damage.[12] Documentary evidence of two notices to remedy breaches of the lease was produced[13], although the Tenants’ representative denied that the Tenants received them.[14] The Tenants, of course, were not available to give direct evidence on that point, or on other matters in dispute. On the Tenants’ side of the debate, the Adjudicator was offered their representative’s assertions of what “the kids” (the Tenants) were “telling me”[15], and her opinion that “they’ve paid enough. I’m sorry, I just don’t agree with it.”[16]
[9]Quotation of The Blind Doctor, Currumbin 17 August 2011 reports: “The way the blinds have been damaged is indicative of rough handling, and not wear and tear”.
[10] T page 25.
[11] T page 28.
[12] T page 31.
[13] T page 26-27.
[14] T page 29.
[15] T pages 29, 30, 34.
[16] T page 29.
No evidence was adduced from the real estate agent to whom the disputed items were first referred, and the Adjudicator was obliged to choose between two diametrically opposed views of the agent’s opinion. According to the Landlords, the agent attributed all the disputed items to culpable damage; the Tenant’s representative insisted that he deemed them fair wear and tear.
As judge of fact and credit, the Adjudicator preferred the direct and detailed evidence of the Landlords to the indirect and less specific submissions of the Tenants’ representative. The Landlords’ case was supported by appropriate invoices and quotations. The Tenants’ denial of receiving notices to remedy breaches was at odds with emails from the agent to the Landlords. Exercising his right and duty to prefer one version of the case to the other, the Adjudicator tactfully explained:
“The evidence from the [Landlords] was more direct and to the point, whereas the evidence from the [Tenants] was via Mrs French. [The Tenants] did not appear to give evidence themselves because they were too busy working to appear. Therefore, there is some weight in the Tribunal’s mind in relation to that matter in favour of the [Landlords].”[17]
That finding was clearly open on the evidence.
[17] T page 38.
Should Leave Be Granted?
On an application for leave to appeal, one must examine the proceedings at first instance, to see whether there is a reasonably arguable case of error which, if not corrected, will cause substantial injustice to the applicant.[18] This is precisely the kind of dispute that the legislature wishes to see resolved speedily, informally, economically, and with finality.[19] One clear purpose of a “leave” proviso is to preclude attempts to conduct retrials on the merits.[20] It is not nearly enough for a party to express disappointment at the original decision, or a subjective feeling that justice has not been done.[21] It is not an appellable error to prefer one version of the facts to another, or to attribute more weight to the submissions of witness “A” than to those of witness “B”. Findings of fact will not usually be disturbed if they have rational, albeit debateable support in the evidence.[22] Where reasonable minds may differ, a decision cannot properly be called erroneous, simply because one conclusion has been preferred to another possible view.[23]
[18]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 at [6]; Drew v Bundaberg Regional Council [2011] QCA 359.
[19] Queensland Civil and Administrative Tribunal Act 2009, s 3(b).
[20]Contrast Queensland Civil and Administrative Tribunal Act 2009, s 20 (review jurisdiction).
[21] Robinson v Corr [2011] QCATA 302 at [7].
[22] Fox v Percy (2003) 214 CLR 118 at 125-126.
[23]Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at [131]; In Re W (an infant) [1971] AC 682 at 700 per Lord Hailsham; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025.
I can discern no error of law or fact that would justify interference with the learned Adjudicator’s decision. On the contrary, and with respect, the Adjudicator, under considerable pressure of time and without professional assistance, has distilled the essence of the case from somewhat picaresque narratives, to arrive at a clearly reasoned judgment. Commendably, he provided the parties with assistance that higher courts not infrequently omit, namely, specific reasons for his credit findings.[24] Leave must be refused.
[24]There are salutary comments on this point in Young v Cesta-Incani [2007] NSWCA 229 at [45] per Tobias JA, Sir Harry Gibbs “Judgment Writing” (1993) 67 ALJ 494 at 497 and M Kirby “Ex Tempore Reasons” (1992) 9 Aust Bar Rev 93 at 102.
ORDERS
The application for leave to appeal is refused.
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