Hart v King
[2013] QCATA 343
•11 December 2013
| CITATION: | Hart v King [2014] QCATA 343 |
| PARTIES: | George Hart Lisa King (Applicants) |
| V | |
| Nigel P Gaudron Kylie Jane Gaudron (Respondents) |
| APPLICATION NUMBER: | APL346 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM |
| DELIVERED ON: | 11 December 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where tenants took premises in a state of disrepair – where tenants sought improvement and repair of tenancy – whether standard of premises decreased substantially - whether grounds for leave to appeal Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 94 Dearman v Dearman (1908) 7 CLR 549 Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
APPEARANCES and REPRESENTATION (if any):
The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Mr Hart and Ms King rented a home from Mr and Mrs Gaudron. When the tenancy ended, Mr Hart and Ms King wanted their bond back and compensation for loss of amenity. Mr and Mrs Gaudron wanted compensation for damage to the property during the tenancy. The tribunal heard three applications together but made one order. The net effect of the applications was that Mr Hart and Ms King owed Mr and Mrs Gaudron $5,104.96.
Mr Hart and Ms King want to appeal that decision. They say the learned Member was biased. They say that she wrongly took sworn evidence from some parties, but not others. They say Mr Hart was denied the opportunity to take an oath. They say that the learned Member did not make any orders in their claim for compensation. They say the learned Member considered Mr and Mrs Gaudron’s claim even though it was filed out of time. They say the learned Member failed to consider s 94 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) and wrongly applied s 419(3) of that Act. They say that the learned Member did not address the diminution in value of Mr and Mrs Gaudron’s assets. Finally, they disagree with the learned Member’s findings of fact.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. 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?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?[4]
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at 2.
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]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.
Bias is a very serious allegation. The test is[5]:
… if a fair-minded lay bystander might reasonably apprehend that the decision-maker might not bring an impartial mind to the determination of the issues that he or she must decide.
[5] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
Mr Hart and Ms King say that evidence of bias is the fact that the learned Member heard Mr and Mrs Gaudron’s application for compensation first. In fact, the learned Member explained that she was going to start with Mr Hart and Ms King’s claim for a return of the bond because “we can get a clearer picture about what we agree…”[6] The tribunal may inform itself in any way it considers appropriate.[7] The learned Member heard from both sides before making her decision. I can find no evidence of bias.
[6] Transcript page 1-3, lines 44-45.
[7] Queensland Civil and Administrative Tribunal Act 2009 (Qld).
The learned Member received evidence from all parties without requiring them to take an oath. She asked Ms King to take an oath because there was a dispute about the authenticity of photographs that she produced at the hearing.[8] The learned Member asked Ms Gaudron to take an oath because Ms King required Ms Gaudron to give oral evidence about the cost of floor repairs.[9]
[8] Transcript page 1-59.
[9] Transcript page 1-81.
The tribunal may accept evidence that is not given under oath.[10] Although it is common practice for “all or none” to give evidence under oath, the learned Member’s decision to require only Ms King and Ms Gaudron to give evidence under oath can be explained. The parties had given much evidence not under oath. Credibility was important only in relation to two distinct issues. The learned Member was not in error in failing to swear all parties to the proceeding.
[10] QCAT Act s 95(4)(b).
The learned Member made findings about Mr Hart and Ms King’s claim for compensation. She did not make specific orders because she deducted the proven claims from Mr and Mrs Gaudron’s claim. The learned Member was not in error.
In Mr Hart and Ms King’s claim for compensation for loss of amenity, another Adjudicator ordered that Mr and Mrs Gaudron file any application for compensation by 5 July 2013. In fact, Mr and Mrs Gaudron filed their application on 8 July 2013. Mr Hart and Ms King applied to strike out the claim because it was late. Another Adjudicator refused that application on 30 July 2013. Mr Hart and Ms King did not appeal that decision.
The tribunal has a broad discretion to do whatever is necessary for the speedy and fair conduct of a proceeding.[11] The order of 21 June 2013 could not restrict Mr and Mrs Gaudron’s rights under the Residential Tenancies and Rooming Accommodation Act. They had a right to file an application for compensation; the order of 12 June 2013 was designed to ensure that all claims were heard together. The applications were heard together. Mr Hart and Ms King were not disadvantaged by a two day delay in the filing of the application. The learned Member was not in error.
[11] QCAT Act s 62.
Section 94 of the Residential Tenancies and Rooming Accommodation Act allows the tribunal to decrease the rent if services or facilities are no longer available or if the amenity or standard of the premises decreases substantially.
The learned Member found that the pool was never included in the tenancy agreement. Item 5.2 of the tenancy agreement, inclusions for the premises, states “As per “Entry Condition Report””. The entry condition report excludes the pool. The learned Member’s was correct not to allow a reduction in rent for the pool.
The learned Member refused Mr Hart and Ms King’s claim about the use of the backyard because the pool fence was non-compliant from the start of the tenancy. She refused a claim about the downstairs stove, dishwasher and clothesline because they, too, were not working from the start of the tenancy and because the learned Member did not consider those matters were “substantial”.
Mr Hart and Ms King took the premises in a state of disrepair. They negotiated a reduced rent. They cannot say that the amenity of the premises decreased if nothing changed. Mr Hart and Ms King had no claim under s 94.
The learned Member considered their claim under s 419(3) of the Residential Tenancies and Rooming Accommodation Act. She dismissed their claim because more than 6 months had passed between the date of the breach and the date of the application. Mr Hart and Ms King point to their numerous Forms 11 and the dispute resolution request. The tenancy commenced on 18 May 2012. The dispute resolution request was lodged on 26 January 2013. Therefore, the dispute resolution request was lodged more than 6 months after Mr Hart and Ms King were aware of Mr and Mrs Gaudron’s breaches. The learned Member’s decision was correct.
Mr Hart and Ms King’s claim for damage due to flooding could not have been the subject of the January 2013 dispute resolution request as the flooding occurred on 27 January and in February 2013. Arguably, Mr Hart and Ms King could not bring that claim to the tribunal until they had undertaken conciliation on that issue. However, the learned Member refused to accept the claim because she found that Mr Hart and Ms King were responsible for the blocked drain.
The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[12] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[13] However, the appeal tribunal must exercise its own discretion when considering whether the original decision maker was in error. As the High Court said in Fox v Percy:
In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.[14]
[12]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[13] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[14] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
I understand that Mr Hart and Ms King are unhappy with the result but that is not the test the appeals tribunal applies. The evidence can support the learned Member’s decision and I can find no compelling reason to come to a different view. There is nothing in the transcript or the evidence on file that persuades me the learned Member should have taken a different view of the facts.
There is no question of general importance that should be determined by the appeals tribunal. There is no reasonably arguable case that the learned Member was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.
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