Hashfield v McIntosh
[2021] QCATA 70
•16 June 2021
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Hashfield v McIntosh & Anor [2021] QCATA 70
PARTIES:
ANTHONY HASHFIELD
(applicant/appellant)
v
PETER GRAHAM MCINTOSH
(first respondent)
MAREE MCINTOSH
(second respondent)
APPLICATION NO/S:
APL036-19
ORIGINATING APPLICATION NO/S:
MCDT1404-18 Southport
MATTER TYPE:
Appeals
DELIVERED ON:
16 June 2021
HEARING DATE:
14 December 2020
HEARD AT:
Brisbane
DECISION OF:
Member Howe
ORDERS:
1. Application to adduce fresh evidence refused.
2. Application for leave to appeal refused.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where the applicant was a tenant of residential premises – where the lessors claimed the bond and damages after the applicant vacated – where the applicant claimed return of the bond which was refused by an Adjudicator and the applicant was additionally ordered to pay damages – where the applicant sought leave to appeal on the basis photographs tendered to the Tribunal had notations added but the copies given the applicant did not – where the applicant claimed prejudice in not being served with miscellaneous applications by the respondents prior to hearing which had been refused by the Tribunal – where the applicant claimed prejudice from his application for production of documents made at hearing being refused – whether leave to appeal should be granted
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 62(3)
Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 78(2)(a)
Pickering v McArthur [2005] QCA 294
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondents:
Self-represented
REASONS FOR DECISION
The applicant appellant (‘Mr Hashfield’) entered into a residential tenancy agreement with the respondents (‘the McIntoshes’) to let their home at the Gold Coast from 18 February 2017 until the tenancy terminated by agreement on 2 September 2018.
The McIntoshes claim the property was not returned in the good condition it was first let. They refused to release the bond of $2,000 and said they had suffered additional damages.
Mr Hashfield commenced minor civil dispute – residential tenancy proceedings in the Tribunal claiming return of his bond.
The McIntoshes filed a counter application claiming $8,143 in damages.
The matter came on for hearing before an adjudicator on 12 December 2018 and the adjudicator ordered Mr Hashfield pay the McIntoshes $2,550.73. The Residential Tenancies Authority was ordered to pay out the bond of $2,000 to them in part satisfaction of that order.
Mr Hashfield 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 before any appeal proceeds.[1]
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld), 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 where there is a reasonable argument that there is an error to be corrected.[2]
[2]Pickering v McArthur [2005] QCA 294.
Mr Hashfield relied on two grounds of appeal in his application for leave to appeal:
That the McIntoshes provided him with a different bundle of documents to that bundle handed up to the Adjudicator at the hearing which was a breach of natural justice;
That the McIntoshes failed to serve him with two applications for miscellaneous matters made to the Tribunal prior to hearing which amounted to procedural unfairness.
In subsequent written submissions he added two more grounds:
The Adjudicator erred in allowing a claim for the cost of maintaining adjacent land owned by the respondents which was not an obligation required of him under the tenancy agreement;
The Adjudicator erred in refusing his application for production of documents by the McIntoshes at the hearing.
Mr Hashfield also filed an application to adduce fresh evidence. It extended to far more than an application to adduce new evidence in support of the grounds of appeal for which evidence was not available at the original hearing. Instead it constituted a general re-argument of much of the case dealt with below by the Adjudicator. To that extent it is to be ignored.
It was put to Mr Hashfield and he agreed that in so far as it concerned fresh evidence as to title of adjacent land and whether its maintenance formed part of his obligations as tenant, it could be addressed when discussing that particular ground of appeal, which I do below.
Ground 1
That the McIntoshes provided him with a different bundle of documents to that bundle handed up to the Adjudicator at the hearing which was a breach of natural justice
The matter was initially listed for hearing before an Adjudicator on 21 November 2018. On that date Mr and Mrs McIntosh handed up a large bundle of documents to the Adjudicator and gave a copy to Mr Hashfield.
The Adjudicator adjourned the hearing to 12 December 2018 to allow Mr Hashfield time to consider the additional material.
On 28 November 2018 the McIntoshes also filed a counter application in which they sought damages of $8,143.
Mr Hashfield complains that the material given to him on 21 November 2018 was not identical to the material handed up to the Adjudicator.
He says he inspected the registry file after the hearing on 12 December 2018 and found substantial differences. He says the photographs provided to him were in black and white and not in colour, as the Adjudicator’s were. He says there were also notations and comments on photographs.
He says there was also a document of several pages containing misleading information and half-truths entitled “Detailing a Story”. (It is not clear whether his complaint about the latter is that he was not given a copy or what he says were its “half-truths”).[3]
[3]Mr Hashfield’s submissions filed 5 April 2019.
The McIntoshes say that the material provided to Mr Hashfield was the same as the material provided to the Tribunal except the material provided to the Tribunal was “prettier”.
They didn’t realise they should not write on the side of the photographs handed up to the Adjudicator without making the same notations on the photographs handed to Mr Hashfield. They say the notations were simply for reference purposes.
A perusal of the photographs in the registry file shows that the notations made by the McIntoshes generally served the purpose of comparisons between photographs taken before Mr Hashfield’s tenancy and when he handed it back.
There is a photograph of a hole in plasterboard in a wall (evidently a bedroom wall) and that photograph simply bears the notation “after”.
The Adjudicator allowed a sum of $528 for damage to the bedroom wall including painting damaged shelves. The Adjudicator said in giving his reasons for decision:
So we started off with the damage to the bedroom wall and that was a previously patched, according to Mr Hashfield. That was because it appeared in the photographic evidence that it was a somewhat circular indentation, which actually was a break in the plaster. But it was admitted that in overall terms, it was occasioned by an arm, or an elbow, whatever it may be and by children, [persons] occupying the property that caused that. It may have been in a weakened state, but I don’t consider that to be of any moment, one way or the other. If it was there, whether it had been patched previously, it appeared to be in order and then it is broken. It did require replacement, or re-patching, I should say.
And then there was the issue with the shelving. Well, there was some photographic evidence – and not that clear, but it would be suggestive of the fact that, well, a repaint of the shelves was required due to some water damage. It does appear to be the case that the re-paint is working thus far. I think Mr McIntosh indicated that in evidence.
So I’m prepared to allow that item in full at $528 because those remediation efforts were necessary and I think were reasonable and appear to be by on-market, third party, arm’s length operator.[4]
[4]Transcript Page 1-45 Line 26-34.
The McIntoshes’ complaints were set out in early correspondence sent to both the Tribunal and to Mr Hashfield. Mr Hashfield replied to the complaints on 6 December 2018. There appears to be nothing added in the notes on the photographs that was not the subject of discussion in the correspondence from the McIntoshes and Mr Hashfield’s response. The hole in the wall, the watermarks on shelves, the laundry sink stains and the lawn maintenance and the photographs relevant to those matters were discussed in some detail.
Generally the notations on the photographs were of the simplest kind. The two photographs of the laundry sink simply bear the respective notations “before” and “after”.
There were two photographs of lawn areas bearing respectively the notations “before 19 February 2018 neat, edges are clear and defined” and “after 2 September 2018 can’t even see the wood trim”.
Another set of photographs of a tennis court bears the notation “before 19 February 2017 fence line can be seen clearly trimmed around trees and poles” and another “after 2 September 2018”. Mr Hashfield clarified at the hearing to the Adjudicator that the tennis court was on the adjacent block of Koala Court.[5] The notations on the photographs did not cloud that issue.
[5]T1-41 L46.
The Adjudicator clearly relied on the imagery depicted in the photographs of the external areas, not the notations.
The copy file of the registry material from the original proceedings at Southport Court provided to the Appeal Tribunal contain only black and white photographs. They show quite clearly the marked contrast between the state of the grounds before Mr Hashfield’s tenancy and the state of the grounds after he vacated.
The notations on the photographs add nothing that might reasonably be claimed to sway the viewer from the conclusion able to be drawn from consideration of the imagery alone.
Concerning the document Mr Hashfield refers to as “Detailing a Story”, that is not readily identifiable in the material on file.
Natural justice is not a formality or rule of rigid technical application. It is about fairness.
Even if there has been a failure by the McIntoshes to provide identical material to Mr Hashford, there was nothing of substance to the notations on the photographs and he has suffered no prejudice from them or the photographs provided to him in black and white rather than colour.
He had ample opportunity at hearing to comment on the photographs and did. The Adjudicator relied on what was depicted in the photographs in reaching his decision. The minor notations could in no sense be claimed to have deceived the Adjudicator as suggested by Mr Hashfield. The notations added nothing to the dialogue on any issue in dispute. They were clearly for the purpose of identifying the chronology of the photographs, before and after tenancy, and the Adjudicator used them for that purpose and no more.
Leave to appeal on this ground is refused.
Ground 2
That the McIntoshes failed to serve him with two applications for miscellaneous matters made to the Tribunal prior to hearing which amounted to procedural unfairness.
Mr Hashfield says comments made in the two miscellaneous applications, neither of which he was permitted to address, prejudiced the Adjudicator against him.
The two applications concerned respectively an application to allow the McIntoshes to remove documents from material they had filed in the Tribunal, and the second an application for a non-disclosure order concerning those same documents after the first application was refused.
The second application was also refused.
In the second application the McIntoshes note that the documents were their personal notes and that the counter application referenced a number of the same matters in the personal notes.
The miscellaneous applications are short and say nothing more than the above.
Mr Hashfield does not explain what “comments” made in the miscellaneous applications alienated the Adjudicator against him at the hearing. In the first application the McIntoshes make clear that a copy of their ‘personal notes’ the subject of the application was handed to Mr Hashfield at the hearing of 21 November 2018.
Mr Hashfield cannot reasonably argue he has suffered prejudice here. Whilst the applications were not served on him they were refused and he received a copy of the material said to be prejudicial, not to him but to the McIntoshes.
A perusal of the transcript fails to reveal the prejudice showed Mr Hashfield by the Adjudicator as claimed by the former. Both parties were given adequate time to present their cases and the hearing transcript offers no evidence of acrimony levelled by or against any participant. Many parties fail to comprehend that if they are not successful on an issue, it is not necessarily because the decision maker was prejudiced against them. Rather it is a matter of the evidence adduced not favouring them. That seems to be the case here with Mr Hashfield’s complaint.
This proposed ground of appeal must fail.
Ground 3
The Adjudicator erred in allowing a claim for the cost of maintaining adjacent land owned by the respondents which was not an obligation required of him under the tenancy agreement
Mr Hashfield says he should not have had to pay for maintenance over an adjacent block of land also owned by the McIntoshes which formed no part of the rented premises. His ground of appeal is premised on the circumstance that the Adjudicator had done that.
It is clear however from the reasons given by the Adjudicator that the Adjudicator did not find Mr Hashfield responsible for maintenance of the adjacent land nor did he allow any claim for that. Indeed thwe
The Adjudicator said:
The lawns, well, to be kept clean and tidy, there’s some pretty compelling photographic evidence of before and after. It is a big block, 400 square metres and there’s a vacant block next door, all of which is owned by Mr and Mrs McIntosh, but there was an assertion, well, next to a block, Koala Crescent I think it was called. In the invoice from Rialto Landscapes, included, I think, $75 for that out of the $500, so, prepared to take that off, but the rest did seem to be referable to the lawns in particular at Woodlands Way. And I do agree with the snipping and general tidying up is an adjunct to the lawn, so $425 there.[6]
[6]T1-48 L1-8.
This ground of appeal must fail.
Similarly, given the adjudicator did not hold Mr Hashfield responsible for the maintenance of the adjacent land, the application for fresh evidence concerning that issue becomes irrelevant and is refused, regardless of whether or not the material concerned was in fact fresh evidence.
Ground 4
The Adjudicator erred in refusing his application for production of documents by the McIntoshes at the hearing.
At the adjourned hearing on 12 December 2018 Mr Hashfield complained that he had asked the McIntoshes to produce 250 photographs they had taken and they refused to do that.
The Adjudicator refused to make any order against the McIntoshes as regards missing photographs and proceeded with the hearing.
Mr Hashfield complains the Adjudicator fell into error in refusing his request.
By s 62(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the Tribunal may give a direction to a party to produce a document or thing either to the Tribunal or another party.
By r 78(2)(a) of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) any such application must be in the approved form and state the reasons why the party requests production.
There was no application brought by Mr Hashfield in the appropriate form prior to hearing. He could have made the application before hearing but failed to do so.
There was no error made here by the Adjudicator in denying his request so late at the second hearing date.
This ground of appeal has little prospect of success.
Conclusion
Mr Hashfield has no reasonable prospect of success in an appeal. No error has been shown to have been made by the Adjudicator. There is no evidence that Mr Hashfield has suffered any prejudice in the conduct of the action by the McIntoshes.
Leave to appeal is refused.
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