Golding v ADP Coastwide Realty & Management
[2014] QCATA 45
•24 March 2014
| CITATION: | Golding v ADP Coastwide Realty & Management [2014] QCATA 045 |
| PARTIES: | Paul Henry Golding (Appellant) |
| v | |
| ADP Coastwide Realty & Management t/as Elders Real Estate Mooloolaba (Respondent) |
| APPLICATION NUMBER: | APL426-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, Presiding Member Member Howard |
| DELIVERED ON: | 24 March 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for leave to appeal is refused. |
| CATCHWORDS: | APPLICATION FOR LEAVE TO APPEAL- MINOR CIVIL DISPUTE-RESIDENTIAL TENANCIES- where tenancy ended- where tenant alleges agent for lessor required a professional clean of premises and claims a refund of the amount of costs incurred- whether this constitutes a dispute about a tenancy agreement- whether Tribunal had jurisdiction for the claim Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 12, s 142, Schedule 3 Cachia v Grech [2009] NSWCA 232 |
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 (Qld) (QCAT Act).
REASONS FOR DECISION
Senior Member Stilgoe:
I have read the draft reasons and proposed orders of Member Howard.
The appeal tribunal has already determined that the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act) is intended to act as a comprehensive code for the rights and obligations between tenants and lessors[1]. Elders Real Estate Mooloolaba was acting as agent for its lessor. Any statement it made about Mr Golding’s obligations under the tenancy agreement were made as agent for the lessor. Therefore, this is a dispute about the rights and obligations between a tenant and lessor. If Mr Golding has no remedy under the RTRA Act, he has no remedy.
[1] Coleman v Dolman[2011] QCATA 47 at [12]
I agree with Member Howard’s conclusions and the orders to be made.
Member Howard:
This application for leave to appeal concerns an unusual, and somewhat misconceived, claim by a former tenant for $220.
Mr Golding rented premises at Sippy Downs for more than eight years in all. The final tenancy agreement was for the period 14 July 2012 to 18 January 2013. However, Mr Golding’s tenancy came to an end on 1 April 2013 following a further periodic tenancy.
He was required under the terms of the residential tenancy agreement to leave the premises clean at the conclusion of his tenancy. The periodic tenancy was on the same terms as the tenancy agreement which had just expired.[2] He did some cleaning himself, but engaged and paid professional cleaners to attend to some tasks. He was recovering from a major period of illness at the time. He paid the professional cleaners $330 in all. However, $110 was for professional carpet cleaning for which he does not claim. The balance was for other cleaning.
[2]Residential Tenancies and Rooming and Accommodation Act 2008 (Qld) s 70.
He later applied to the Tribunal for refund of $220 of the cleaning costs. He claimed that at the commencement of the tenancy he was given no details about the expected standard of cleanliness on departure and that he had been required to pay cleaners to achieve a higher standard of cleanliness than was the case when he entered the tenancy. He alleged that he believed, because of statements made to him by the lessor’s agent, that he was compelled or required to use cleaners .
The learned Justices of the Peace who determined the proceeding dismissed the application. It appears that they did so, on the basis that Mr Golding had instructed the cleaners and paid the agreed fee in circumstances when there was no legal or other obligation upon him to do so. They were satisfied that the agent had not required him to do so. They were not satisfied that Mr Golding had ‘established a cause of action … on the balance of probabilities’.
Mr Golding seeks leave to appeal the Tribunal’s decision. The bases for his application are varied, and relate to reliance upon demeanour in resolving issues of credit without considering that or how his disability affected his demeanour; failing to consider that the cleaning was instructed under severe duress; failing to properly consider the email evidence; and that it ‘dismissed’ his allegation that the required standard of cleanliness on exit was higher than on entry. In his submissions, Mr Golding also alleges bias by the Tribunal. For the reasons discussed below, I do not need to consider the bases advanced, as Mr Golding’s claim can not succeed before the Tribunal.
When should leave to appeal be granted?
Leave is required to appeal the decision under s 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act) because the original decision involves a minor civil dispute.
Leave to appeal will ordinarily be granted when a question of general importance upon which further argument and a decision of the Appeal Tribunal is to public advantage;[3] there is a reasonably arguable case that the primary decision-maker made an error[4] and there are reasonable prospects that the applicant would be granted orders in its favour;[5] or to correct a substantial injustice to the applicant caused by error.[6]
The merits of the application
[3]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578 and 580.
[4]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[5]Cachia v Grech [2009] NSWCA 232, [13].
[6]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
In the circumstances of this claim, the only possible basis for the claim under the Residential Tenancies and Rooming and Accommodation Act 2008 (Qld) (‘the RTRA Act’) lies in s 429 which is a catch-all provision in respect of miscellaneous claims not otherwise specifically provided for in the RTRA Act. It provides that the Tribunal may make orders it considers appropriate to resolve a dispute between a lessor and a tenant about an agreement. As far as relevant in this proceeding, this means a dispute about a residential tenancy agreement.
The issue about the standard of cleanliness required under the agreement is a red herring and irrelevant to the claim actually made. The essence of Mr Golding’s claim is that he believed that he was compelled or required, because of statements made to him by employees of Elder’s Real Estate, to engage professional cleaners to do a ‘bond clean’ when he vacated. He was not so compelled under the terms of the agreement itself. The allegation is that the statements were made by the agent’s representative. Whatever statements were made about this (and I do not make any comment about whether any statements were or were not made), they could not form part of the tenancy agreement, and could only have arisen much after it.
This claim is a claim in tort law for negligent misstatement made independently of the tenancy agreement itself, rather than a dispute about a tenancy agreement.
Minor civil disputes include tenancy matters, but only as far as claims a party has an entitlement to bring under the RTRA Act.[7] There was no entitlement to bring this claim under the RTRA Act because it is not a dispute about a tenancy agreement. The Tribunal does not have jurisdiction to determine the claim for negligent misstatement as a minor civil dispute.
[7]QCAT Act s 12, and Schedule 3 definitions ‘minor civil dispute’ and ‘tenancy matter.’
Accordingly, the application for a minor civil dispute could not succeed and should properly have been dismissed.
Although it did not articulate it in the terms I have, the learned Tribunal did dismiss the application because it was not satisfied Mr Golding had established a cause of action. I agree to the extent that Mr Golding had not established that his claim was for a cause of action for which the Tribunal has jurisdiction. Therefore, for reasons other than those articulated by the Tribunal, it’s order was correct.
Accordingly, even if there was merit to any of Mr Golding’s complaints, (and I make no findings to that effect), Mr Golding’s claim can not succeed before the Tribunal and he could not obtain orders in his favour.
I would refuse leave to appeal.