Gross v Ray White Bulimba Pty Ltd
[2018] QCATA 4
•15 January 2018
CITATION: | Gross v Ray White Bulimba Pty Ltd [2018] QCATA 4 |
PARTIES: | Petro Gross |
| v | |
| Ray White Bulimba Pty Ltd (Respondent) | |
APPLICATION NUMBER: | APL260-17 |
MATTER TYPE: | Appeals |
HEARING DATE: | 12 December 2017 |
HEARD AT: | Brisbane |
DECISION OF: | Member Howe |
DELIVERED ON: | 15 January 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The decision of 15 June 2017 is set aside. 4. The matter is returned to a differently constituted tribunal for reconsideration with the hearing of additional evidence as considered appropriate by that tribunal |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where tenant applied for return of bond – where RTA paid out the bond to the lessor – where the tribunal failed to comprehend the tenant’s claim Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 136(3)(c)(iv) Pickering v McArthur [2005] QCA 294 |
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
Ms Gross was a tenant of premises at Bulimba. She paid a bond to the Residential Tenancies Authority (RTA) pursuant to her residential tenancy agreement. The respondent was the agent of the lessor.
When the tenant vacated the agent claimed money from the bond as compensation for damage to the timber floor at the property, alleged to have been caused by the tenant during the tenancy. The agent claimed the sum of $1,388.97 as the cost of having the floors sanded and painted. The agents claimed that amount from the bond. All the bond was paid out to them by the RTA when the tenant did not apply to the tribunal within time. The tenant was out of the country.
The tenant subsequently applied to the tribunal to recover the bond amount or part of it paid to the agent. The matter was heard in the tribunal on
15 June 2017. The tribunal ordered that the application by both parties be dismissed.
The tenant seeks leave to appeal that decision. Given this is an appeal from a decision made in the tribunal’s Minor Civil Dispute jurisdiction, leave to appeal must first be obtained.[1]
[1]QCAT Act, s 142(3)(a)(i).
Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and there is a reasonable argument that there is an error to be corrected.[2]
[2]Pickering v McArthur [2005] QCA 294, [3].
The application for leave to appeal and appeal is broadly described. This is not uncommon in the tribunal. An essential aspect of leave to appeal or appeal is that an error by the decision maker below be identified. It is not a matter of asking for another hearing because the initial decision is unpalatable. In the Minor Civil Dispute jurisdiction, that identification of error is sometimes hard for self-represented parties to formulate succinctly.
Consideration of the application for leave to appeal in this matter appears to disclose the following grounds of appeal:
a)Ground 1: The tribunal made an error in identifying the party to the proceedings seeking relief;
b)Ground 2: The tribunal erred in determining the matter on the basis that it was an application by the respondent for compensation;
c)Ground 3: The tribunal erred in failing to consider the applicant’s application for payment of the bond to her.
The hearing below
The tenant was the applicant to the proceedings before the tribunal. Her application sought a declaration that damages claimed by the lessor to repair scratches to a timber floor in the rental premises constituted normal wear and tear and further that the bond of $2,020 (sic) be paid out to her. Alternatively that the lessor be entitled to only part of the cost of repair to the floor.
By the time of hearing, the RTA had paid out the bond to the lessor. From that ($2,120) the lessor kept $1,388.97 and paid the balance of $731.03 to the tenant.
It was made clear at hearing that the tenant’s claim at that time was for part of the amount of the bond.[3] Some confusion appears to have arisen at outset of the hearing because the RTA had taken the step of paying out the bond to the lessor. That happened because by s 136(3)(c)(iv) of the Residential Tenancies and Rooming Accommodation Act 2008 (RTRAA) . By that provision, the RTA must pay out a disputed bond within 7 days of notice given to a contributor (tenant) of a lessor’s claim to a bond if there is a failure to resolve who is entitled to the bond through the RTA dispute reconciliation process, and there is no application to the tribunal to resolve the dispute.
[3]Transcript 1-5 Line 36.
Here, the tenant’s parents had not been able to obtain instructions from their daughter to make an application to the tribunal about the bond within 7 days following notice and the bond was paid out to the lessor’s agent by default.
The agent then paid the lessor $1,388.97 from the money as compensation for the damage claimed to the timber floor. The agent paid the balance to the tenant.
A perusal of the transcript of the proceedings disclosures a somewhat confused and overlong deliberation occurred about the appropriate parent to represent the tenant before the tribunal. Both father and mother attended. The daughter was still out of the country. The father was a lawyer. The mother was not and the matter eventually proceeded on the basis the mother represent the daughter.
The tribunal may well have been confused by this initial matter. In any case when the tribunal came to giving its decision it concluded the respondent lessor had been sufficiently compensated by the payment of the bond and the retention from it of the sum of $1,388.97 representing the quoted cost of sanding and painting of the timber floor.
The tribunal ordered:
The other claims by the respondent as against the applicant are dismissed. The evidence put forward by the respondent does not indicate or persuade the tribunal that the applicant ought to be paying any further money to the respondent. There is something to be said for the applicant’s claim to be entitled to a refund of those monies but this is probably not the right forum for that to be dealt with today and we don’t have all the details that we would need.[4]
[4]T1-35 L33.
The tribunal went on to dismiss the claim by the respondent and also ordered the claim by the applicant against the respondent be dismissed.
The application of course was made by the applicant, not the respondent, and the task before the tribunal was to determine the applicant’s claim for a refund of the money retained by the respondent from the bond.
The tribunal clearly misunderstood what the application entailed and who brought it. That misunderstanding was brought to the attention of the tribunal by the parents. The tribunal went on to compound the problem however by finding that no application for return of part of the bond paid to the lessor could be entertained because the payment had been made pursuant to “statute”, the respondent being accordingly entitled to it.[5]
[5]T1-36 L45.
The tribunal then suggested the tenant might have a claim for refund of some money on the basis of unjust enrichment, but then failed to proceed any further and determine the claim. It should have done. The matter concerned compensation claimed by a lessor against a tenant in a tenancy matter. It was entirely appropriate for consideration and determination by the tribunal.
There has been a most egregious misconception of the jurisdiction and issues for determination before the tribunal by the tribunal.
The claim by the tenant was readily discernible from the initial application filed and then clearly stated at hearing. The tenant disputed the lessor’s claim for payment of the costs of sanding and painting the floor in the rental property because she maintained the floors were already damaged when she first occupied the property. The lessor was entitled to the return of the property at exit in the same condition as at entry, save for fair wear and tear, but not better than at entry at the cost of the tenant.
That was the matter for determination before the tribunal. What compensation was due the lessor and what amount the tenant was entitled to recover back from the lessor. The tribunal failed to comprehend that. This misconception of the claim constituted a fundamental error of law on the part of the tribunal and all three grounds of appeal are aspects of that fundamental error.
The payment out of the bond by the RTA did not detract from the tenant’s claim. That was not an uncommon situation to find in the tribunal in its residential tenancy jurisdiction. Section 136 of the RTRAA does no more than make provision for the RTA to pay out bond monies held by it in timely fashion. It does not establish any entitlement or proportionate entitlement to those monies where that is disputed between lessor and tenant. That is the job of the tribunal.
There has been a substantial injustice done to the appellant in the tribunal hearing below. That must be corrected.
Leave to appeal is granted and the appeal allowed. The decision of
15 June 2017 is set aside. The matter should be returned to a differently constituted tribunal for reconsideration with the hearing of additional evidence as considered appropriate by that tribunal.
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