Gilbert v Nanango Real Estate
[2014] QCATA 255
•1 September 2014
| CITATION: | Gilbert v Nanango Real Estate [2014] QCATA 255 |
| PARTIES: | Jessica Gilbert (Applicant/Appellant) |
| v | |
| Nanango Real Estate (Respondent) |
| APPLICATION NUMBER: | APL265 -14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 22 August 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Thomas, President Senior Member Stilgoe OAM |
| DELIVERED ON: | 1 September 2014 |
| DELIVERED AT: | Brisbane |
| ORDER MADE: | Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCIES – where claim for compensation exceeded bond - lessor’s agent restricted claim to amount of the bond – where claim for rent to end of notice period – where tenant vacated before end of notice period – whether lessor entitled to charge rent to end of notice period – whether tribunal erred in calculation of compensation – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 29, s 139(5), s 142(3)(a)(i) Chambers v Jobling (1986) 7 NSWLR 1 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Ms Gilbert |
| RESPONDENT: | Ms Jane Erkens of Nanago Real Estate |
REASONS FOR DECISION
On 13 November 2013, Nanango Real Estate filed a claim for $1698.10 for carpet cleaning, rental arrears, bond clean, carpet clean, filing fee, excess water use and an electrician’s call out fee. The Residential Tenancies Authority held a bond of $960.
Ms Gilbert was not present at the hearing on 17 January 2014. She was represented by her partner and friend, Mr Metcalfe and her support worker Ms Wharehinga. A Magistrate, sitting as a member of the tribunal ordered that the bond be paid out to Nanango on the basis of rent arrears and the carpet cleaning fee.
Ms Gilbert wants to appeal that decision. She submits Ms Erkens misled the learned Magistrate by denying knowledge of a letter dated 18 September 2013 in which she confirmed Ms Gilbert would vacate the tenancy on 22 September 2013. She says the tenant ledger produced to the tribunal is not accurate and/or does not show any rent arrears. She wants an order that Nanango pay a percentage of all power costs for the tenancy. She submits that the tax invoices for the bond clean and the carpet cleaning do not comply with relevant legislation and, therefore, should be ignored. She submits that there is no evidence that a bond clean or carpet clean was necessary. She submits that the bond clean costs should be reduced because it addressed mould build up, a problem about which Ms Gilbert had been complaining for some time.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] 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]Pickering v McArthur [2005] QCA 294 at [3].
In this case, the appeal tribunal has the powers prescribed to it by s 147 of the QCAT Act. Ms Gilbert’s appeal must proceed by way of rehearing. Such an appeal is based on the record of the proceedings before the Member at first instance.
The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[3] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[4]
Rent
[3]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[4]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
The learned Magistrate was aware of the letter of 18 September 2013 because Ms Wharehinga read it into the record.[5] The learned Magistrate noted that Nanango claimed rent up to 29 September 2013, the date referred to in Ms Gilbert’s notice of intention to leave.[6] He found that this was an appropriate basis for the claim for rent arrears[7].
[5]Transcript page 1-6, line 43 to page 1-7 line 2.
[6]Transcript page 1-7, lines 20 – 21.
[7]Transcript page 1-7, line 25.
The learned Magistrate’s conclusion is consistent with the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act). Section 277(4) states that a residential tenancy agreement ends if the tenant gives a notice of intention to leave and hands over vacant possession on or after the handover date.
Section 327(1)(d) provides that a valid notice of intention to leave must state the tenant intends handing over the tenancy on the day stated in the notice.
The combined effect of ss 277(4) and 327(1) is that, based on the notice, Ms Gilbert’s tenancy ended on 29 September 2013. The fact that she vacated earlier does not mean that the tenancy ended earlier. Her notice to leave committed her to pay rent until 29 September 2013. Ms Gilbert could have issued a fresh notice of intention to leave but she did not.
There was a dispute about telephone discussion concerning the date and the learned Magistrate found in favour of Ms Erkens. The letter of 18 September 2013 can be read as an acknowledgement that Ms Gilbert was vacating the tenancy on that date, rather than an agreement that the tenancy would end on that date. In the circumstances, the learned Magistrate’s findings, including that rent was payable up to and including 29 September 2013 were open to him.
In her submissions to the learned Magistrate, Ms Gilbert stated that the tenant ledger was wrong. At the hearing, the learned Magistrate and Ms Wharehinga had a lengthy debate about the alleged errors in the tenant ledger.[8] Ms Erkens, for Nanango told the learned Magistrate that there had been some errors in the ledger but that these had been corrected.[9]
[8]Transcript page 1-7, line 30, to page 1-11 line 4.
[9]Transcript page 1-9, lines 8 – 18.
The learned Magistrate was satisfied that the ledger accurately represented the position as to rent.[10] Ms Gilbert referred to an unexplained rebate of $0.99, which appears to have continued after Nanango adjusted the ledger in May 2013. There are 10 additional rebates of $0.99, a total of $9.90. For the reasons that follow, we are not satisfied that a discrepancy of $9.90, if it in fact exists, justifies leave to appeal.
Power costs
[10]Transcript page 1-11, lines 25 – 27.
There is a report from Ergon dated 18 September 2013 which shows that a power point in the kitchen was faulty, there were some other suspect power points, and, the light fittings may have been affected by water. Ms Gilbert does not explain how these matters justify a reduction in the power bill. If Ms Gilbert used power during her tenancy, she is obliged to pay for it. The learned Magistrate made no orders about power costs. There is no basis for this ground for leave to appeal.
Tax invoices
Ms Gilbert submits that the carpet cleaning invoice was issued by the wrong entity. She says the ABN relates to Fred’s Utility Services Pty Ltd whereas the invoice was issued by F J Schoenwald, and that she has never received the original invoice.
Ms Erkens told the learned Magistrate that professional carpet cleaning was a term of the tenancy agreement.[11] The learned Magistrate told Ms Wharehinga that a do-it-yourself carpet clean could not meet this condition.[12] Ms Gilbert does not deny the fact of the carpet clean. A difference between the ABN and the name on the invoice is not a reason why Ms Gilbert should not pay for a service which was required under the tenancy agreement. Nanango has no obligation to provide Ms Gilbert with the original of this invoice. This ground for leave to appeal must fail.
[11]Transcript page 1-3, lines 35 – 40.
[12]Transcript page 1-4, lines 4 – 25.
Ms Gilbert says the ABN on the bond clean invoice refers to a cancelled ABN and a person who was not registered for GST. This is not a reason why Ms Gilbert should not pay for that invoice. In any event, the learned Magistrate did not order that Ms Gilbert pay for the bond clean because, by his calculation, Nanango’s claims already met or exceeded the bond.
Procedure at the hearing
Ms Gilbert submits that her partner Mr Metcalf was flustered at the hearing and, by implication, did not do a very good job representing her interests. She also submits that Ms Wharehinga was intimidated by the process and the learned Magistrate did not allow her to speak.
We have already referred to the sections of the transcript that record a discussion between the learned Magistrate and Ms Wharehinga. The transcript does not support a submission that Ms Wharehinga was not given an opportunity to put Ms Gilbert’s case.
The tribunal has an obligation to ensure that parties understand the practices and procedures of the tribunal and the nature of the assertions made against them.[13] The learned Magistrate took care to step the parties through each of Nanango’s claims. We are satisfied that he met the tribunal’s obligations in that regard. If Mr Metcalfe and Ms Wharehinga fell short as Ms Gilbert’s advocates, it does not call in to question the decision of the tribunal.
[13]QCAT Act s 29.
Ms Gilbert submits that not all of her material was before the learned Magistrate. The tribunal dealt with that issue in an unsuccessful application for reopening on 5 May 2014. There is no appeal from the tribunal’s decision on a reopening application.[14] The learned Magistrate considered all of the issues raised in the additional material. This is not a ground for leave to appeal
Is there a substantial injustice?
[14]QCAT Act s 139(5).
The learned Magistrate did not consider the balance of Nanango’s claims, not because they were abandoned, but because the bond was exhausted by the claim for rental arrears and carpet cleaning.[15] These claims amounted to $987. If the learned Magistrate was in error in failing to credit $9.90 for the unexplained rebates, the total due to Nanango was $977.10. That is $17.10 more than the bond.
[15]The learned Magistrate correctly identified that the claim was limited to $960 and anything above that amount was not being pursued (Transcript page 1-11, lines 12 - 13.) He later misdirected himself that the claims were abandoned (Transcript page 1-11, lines 37 – 38).
Ms Gilbert submitted to the appeal tribunal that the bond clean invoice should be reduced to cover the mould but she did not suggest that none of it could be recovered. The invoice net of GST is $113.64. Moreover, Nanango is entitled to recover the filing fee of $101.40.
Conclusion
There is no reasonably arguable case that the learned Magistrate was in error. In view of the amounts in issue, there is no substantial injustice to Ms Gilbert. Leave to appeal should be refused.
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