Hadgelias Holdings t/a Ray White Paddington v Fairbairn

[2010] QCATA 118

CITATION:		Hadgelias Holdings t/a Ray White Paddington v Fairbairn [2010] QCATA 118
PARTIES:	Hadgelias Holdings t/a Ray White Paddington
v
Lawrence Fairbairn

APPLICATION NUMBER:   APL261-10

MATTER TYPE: Appeals

HEARING DATE:     On the papers

HEARD AT:  Brisbane

DECISION OF: Richard Oliver, Senior Member

DELIVERED ON: 22 December 2010

DELIVERED AT:      Brisbane

ORDERS MADE: Application for leave to appeal refused.

CATCHWORDS : 

Minor civil debt – excessive water use claim; where Adjudicator made findings of fact in accordance with the evidence; whether error of fact or law

Queensland Civil and Administrative Tribunal Act 2009 section 142(3)

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
Cachia v Grech [2009] NSWCA 232 at [13].
QUYD Pty Ltd v Marvass Pty Ltd (supra).
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.

APPEARANCES and REPRESENTATION (if any):

Decision on the papers.

REASONS FOR DECISION

1. The respondent Mr Fairbairn and Marie Cassim and Matthew Neville were tenants of a house managed by the applicant at 561 Boundary Street, Spring Hill.  The tenancy agreement was for a period of 12 months commencing on 1 March 2009 and concluding on 28 February 2010.

1. The tenants vacated the premises on 28 February 2010.  On 24 April 2010 the landlord received an account from Urban Utilities for $2,172.23 for water usage at the premises between the period 13 November 2009 to 22 February 2010.  The total water usage charge was $2,025.43.

1. An application was then brought in QCAT by the managing agent seeking recovery of $1,883.85 for excess water usage.  The application was defended.

1. When the matter came on for hearing, the learned Adjudicator heard evidence from the managing agents representative, Ms Butterworth as well as, from two of the tenants, Ms Cassim and Mr Fairbairn.  The transcript of evidence reveals that the point of contention, in respect of the excess water charge, related to a leaking toilet.  That is, the toilet system continued to run and the fact that this had been an ongoing problem was not contentious.  In fact, the tenants contend that complaints were made to the property managers about the leaking toilet well before the premises were vacated, and ultimately the whole system was replaced in or about March 2010.

1. There was an issue of fact as to whether or not the running toilet had been reported to the property agent.  The tenants evidence was that it had whereas, the evidence from Ms Butterworth indicated that there was no record on their file of any report.  She also said that all reports of maintenance issues had to be in writing.  Again this was a contested issue which was addressed in the learned Adjudicator’s reasons.

1. The fact of the matter is that the property agent knew there were excess water charges as there had been excess water in the previous account which had been compromised by the tenants, however the most recent account was well in excess of what had been used in the past. 

1. Faced with the known fact that there was a running toilet which was a reasonable explanation for the excess water charges, the learned Adjudicator had to decide the question of fact as to whether or not the tenants were responsible.  The learned Adjudicator quite rightly pointed out that the evidentiary burden of establishing the entitlement to the claim was on the applicant and although she did not entirely accept all of the evidence of the tenants, she was required to make a judgement on the evidence before her as she did in a well reasoned decision.

1. My sole duty is to determine whether there is an error in the primary decision. It is not my task to decide where the truth lay as between the competing versions given by the parties.[1]

   [1]        Fox v Percy [2003] HCA 22 at [32] per Gleeson CJ, Gummow and Kirby JJ.

1. The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?[2] Is there a reasonable prospect that the applicant will obtain substantive relief?[3] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[4] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[5]

   [2]        QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

   [3]        Cachia v Grech [2009] NSWCA 232 at [13].

   [4]        QUYD Pty Ltd v Marvass Pty Ltd (supra).

   [5]        Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, at 389; McIver        Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.

[10]  The grounds of appeal and the submissions in support simply seek to re-agitate the evidence that was before the learned Adjudicator. Her reasons make it clear that she considered all of the evidence and made a judgment on the facts as presented to her. She determined that the tenants should pay part of the claim for excess water in the sum of $200.00 No error on the part of the learned Adjudicator has been demonstrated, and none is apparent.  Therefore, leave to appeal is refused.