Griffin v Gini

[2011] QCATA 325

CITATION: Griffin v Gini [2011] QCATA 325

PARTIES:	Larry Griffin Debra Griffin (Appellants)
v
Marcello Gini Danielle Gini (Respondents)

APPLICATION NUMBER:   APL251-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Judge Fleur Kingham, Deputy President

DELIVERED ON: 1 December 2011

DELIVERED AT: Brisbane

ORDERS MADE:      The Application for leave to appeal is refused.1.   

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where former tenants ordered to pay for damage to walls and kitchen bench – where tenants argued fair wear and tear not properly assessed by learned Magistrate – where damage fell outside scope of fair wear and tear

Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(i)
Residential Tenancies and Rooming Accommodation Act 2008, s 188

Fink v Fink (1946) 74 CLR 127 applied
JSM Management Pty Ltd v QBE Insurance (Australia) Ltd [2011] VSC 339 followed
Price v Schofield [2010] QCATA 40 cited
Taylor v Webb [1937] 2 KB 283 followed

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. Mr and Mrs Gini are lessors of a property in Townsville.  Mr and Mrs Griffin were their tenants.  Following termination of the tenancy, Mr and Mrs Gini lodged an application in the Minor Civil Dispute jurisdiction of QCAT for losses incurred as a result of the Griffins’ tenancy.

1. On 24 January 2011 a Magistrate in Townsville, acting in his capacity as a QCAT Member, ordered the Griffins to pay the Ginis a total of $4,882.70 in damages.  The Griffins lodged an application for leave to appeal that decision.

1. Leave is required to appeal from a decision arising from a Minor Civil Dispute.[1]  Leave will ordinarily only be granted where there is 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 a reasonable prospect that 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?

   [1]        Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(i).

2. The Griffins’ grounds for leave to appeal can be summarised as follows:

a)The learned Magistrate erred by treating the tenancy agreement, and the obligations of the tenant, as having commenced in May 2007, not May 2010 when the final tenancy agreement commenced; and

b)The learned Magistrate erred by allowing 100% of the cost of repainting the premises when the premises were not new.

Is the date the tenancy agreement commenced relevant to the claim?

1. The Griffins and Ginis entered into a fixed term tenancy agreement for the first time on 17 May 2007.  The property was new; the Griffins were the first tenants in the premises.  They entered into a further 5 consecutive agreements,…