Glover v Chen - [2010] QCATA 46

CITATION:

Glover v Chen & Anor [2010] QCATA 46

PARTIES:	Erin GLOVER (Applicant/Appellant)
v
Bright Chen Huei CHEN & Yu Yen KO (Respondents)

APPLICATION NUMBER: APL141-10

MATTER TYPE:

Appeal

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF:

Justice Alan Wilson, President

DELIVERED ON: 8 September 2010

DELIVERED AT: Brisbane

ORDERS MADE: Application for leave to appeal refused

CATCHWORDS :

RESIDENTIAL TENANCIES DISPUTE – COMPENSATION – where applicant awarded compensation for expenses incurred as a result of care for animals – where applicant alleges amount of compensation insufficient –whether reasonable exercise of discretion

REASONS FOR DECISION

Mr Chen and Mr Ko are the owners of a property at Camp Cable Road Jimboomba. Until recently Ms Glover was a tenant in the premises. In March 2010 the owners brought proceedings in QCAT’s Minor Civil Disputes jurisdiction for termination of the tenancy. By the time the matter came for hearing before a QCAT adjudicator on 21 June 2010 Ms Glover had vacated the premises and the issue before the Tribunal was whether or not the landlord was entitled to arrears of rent, and an amount claimed for gardening expenses.
After hearing from a real estate agent (on behalf of the owners), and Ms Glover, the learned adjudicator disallowed the claim for gardening expenses but ordered that the Residential Tenancies Authority pay the owners the sum of $1,680.00 from the rental bond; and, that Ms Glover pay the landlords $3,175.00 for arrears of rent less a ‘credit’ of $500.00 for ‘loss of amenities’.
The reduction in arrears of $500.00 was made, as the learned adjudicator’s reasons show, by way of compensation to Ms Glover for costs involved in caring for animals she had at the property which, she alleged, became ill (and some of which had to be destroyed) because the property had previously been used as a market garden, and these mishaps to Ms Glover’s horses may have occurred because of ‘…toxins emanating from underground’, and what the learned adjudicator found to be a ‘…strong inference that in fact chemicals in the form of fertilisers and other chemicals had been regularly utilised’.
Although the Minor Civil Disputes file does not indicate any counter-claim or cross-proceeding had been brought by Ms Glover, it is apparent that the learned adjudicator was content to deal with the matter at the time of hearing and in particular, Ms Glover’s claim for rent reduction of $100.00 per week over 12 weeks made after she received the notice of termination from the landlords agent. That accords with the tenor and spirit of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) and, in particular, s 28(2) which requires the tribunal to act ‘according to the substantial merits of the case’ and s 28(3)(d) which urges informality and a ‘proper consideration of the matters before the tribunal’.
The learned adjudicator said that she found all witnesses to be credible and truthful but ‘…at the end of the day I am concerned that the property has perhaps potential dangers both to anyone who wants to have animals on the site…in relation to the request for rent reduction, I am not satisfied that it is appropriate to award the amount that’s been sought given that it was not raised with the landlord until after a notice to leave on the grounds of breaches occurred. However, I am satisfied that there should some reduction in the rent payable and accordingly I am ordering the sum of $500.00 be reduced from the rent that is outstanding’.
Ms Glover seeks leave to appeal the decision. Her grounds appear to allege that the compensation award of $500.00 was inadequate. She has filed lengthy submissions alleging that the landlords knew she wished to keep animals and, indeed, to breed horses and it was therefore important that the property be safe for use for that purpose.
The landlords agent has filed submissions alleging there is no proof that any problems with the horses were caused by anything to do with the former use of the property or the presence of chemicals upon it and, indeed, allege that $500.00 compensation was excessive. That said, the landlord has not appealed any part of the decision.
Because the original decision involved a proceeding for a Minor Civil Dispute Ms Glover must first seek this Appeal Tribunals leave to appeal: QCAT Act, s 142(3)(a)(i).
In her submissions she alleges the landlords’ agent knew of her intentions for the property and the problems she encountered with sick and dying livestock; and, that she incurred expenses of much more than $500.00 in caring for her sick or dying horses.
Her first difficulty is, however, that there is nothing in the tenancy agreement indicating the property was specifically rented for use as a horse stud, or for horse breeding. The agreement simply records that the presence of pets – two dogs and horses – is approved. It might be said that, in that circumstance, the decision to award compensation involved a construction of the terms and nature of the tenancy which was as beneficial to Ms Glover’s interests as it could be.
The second is that the learned adjudicator was exercising a discretion to award compensation under s 420(1)(e) of the Residential Tenancies and Rooming Accommodation Act 2008 with, on the face of the evidence before her, only limited information about Ms Glover’s alleged losses. Nothing in the material before the adjudicator supported, or established, a measure of loss in a greater or more specific sum. In her submissions to this appeal tribunal Ms Glover has included veterinary surgeon’s bills and other material but any appeal, if leave is given, would be by way of rehearing[1] and there is nothing to suggest she would have leave to introduce new evidence or, in particular, that the material she now relies upon could not have been presented in the minor civil disputes jurisdiction.
[1] QCAT Act, s 154(2)
The third is that leave will ordinarily only be granted where there some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and reasonable prospect of the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?
On the very limited evidence presented to her, the learned adjudicator exercised her discretion in a very broad way but, in the circumstances, one which involved a fair and reasonable exercise of the balance necessary to achieve justice between the parties. Nothing in the material before the learned adjudicator, or in her reasons, suggests her approach to the matter was unreasonable, or involved any injustice. Otherwise, there is no question of general importance in this matter, and leave to appeal should be refused.