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Hobbs v PGK Pty Ltd

Hobbs v PGK Pty Ltd

Case [2018] QCATA 156 16 October 2018

Civil Litigation & Procedure

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Hobbs v PGK Pty Ltd & Anor [2018] QCATA 156

PARTIES:

LYNETTE JOY HOBBS
(appellant)

v

PGK PTY LTD

(first respondent)

DIMITRIOS BELLOS

(second respondent)

APPLICATION NO/S:

APL048-18

ORIGINATING APPLICATION NO/S:

MCDT467-17

MATTER TYPE:

Appeals

DELIVERED ON:

16 October 2018

HEARING DATE:

24 September 2018

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

1.   Leave to appeal granted.

2.   Appeal allowed.

3.   Dimitrios Bellos pay the sum of $750 to Lynette Joy Hobbs within 14 days of the date of decision.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where tenant caused damage to blinds during tenancy – where tenant caused damage to walls during tenancy – where the rental house was sold by the lessor prior to hearing – where the lessor claimed the cost of blind repair and painting damaged walls – where the house was sold with the blinds damaged – where there was evidence of the lessor painting the house throughout after each tenancy – where the lessor painted the house throughout prior to sale – whether the lessor suffered any loss – whether the lessor entitled to compensation

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 188(4), s 419(3), s 420

Bwllfa and Merthyr Dare Steam Collieries (1891) Ltd v Pontypridd Waterworks Co (1903) AC 426
Gumland Property Holdings Pty Ltd v Duffy Bros Fruit Market (Campbelltown) Pty Ltd [2008] HCA 10
Marks v GIO Aust Holdings Ltd [1998] HCA 69

Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351

Pickering v McArthur [2005] QCA 294

APPEARANCES & REPRESENTATION:

Appellant:

Self-represented

First Respondent:

Self-represented by Leisa Bennion

Second Respondent:

Self-represented

REASONS FOR DECISION

Ms Hobbs was a tenant of a house owned by Mr Bellos at Sunnybank Hills. She left the home after a 1 month tenancy and there was a dispute over the bond.
Ms Hobbs applied to the Tribunal to recover her bond of $1,420. Mr Bellos through his agents, the first respondent, made a counter application against Ms Hobbs for compensation for damage to the property totalling $3,507.80.
The matter was heard by an Adjudicator at Richlands Magistrates Court on 31 January 2018 with the learned Adjudicator ordering that the Residential Tenancies Authority pay $1,350 from the bond to the agents and the remainder paid back to Ms Hobbs.
Ms Hobbs wants to appeal the 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]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 where there is a reasonable argument that there is an error to be corrected.[2]
[2]Pickering v McArthur [2005] QCA 294, [3].
At the hearing of the Appeal, Mr Bellos sought leave as lessor to be added as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hobbs v PGK Pty Ltd

Details

AGLC: Hobbs v PGK Pty Ltd [2018] QCATA 156
Case: [2018] QCATA 156
Decision Date: 16 October 2018

CaseChat Overview and Summary

In the case of Hobbs v PGK Pty Ltd, the dispute arose from damages caused to blinds and walls during a tenancy. The lessor, Lynette Joy Hobbs, claimed compensation from the tenant, Dimitrios Bellos, for the cost of repairing the blinds and painting the walls. The rental property was sold by the lessor before the hearing, and the lessor argued that the damages were still present at the time of sale. The Adjudicator had awarded Bellos $750 as compensation for the damages, but the Appeal Tribunal found that the lessor had not suffered any loss and remitted the amount to be paid back to the lessor.

The central legal issues in this case involved the assessment of compensation for damages to the property during the tenancy and the determination of whether the lessor had actually suffered any loss. Specifically, the court needed to decide if the lessor's actions in painting the house after each tenancy and prior to the sale constituted evidence of a loss, thereby justifying the compensation award. Additionally, the court had to consider whether the error of law in the initial assessment of compensation warranted the granting of leave to appeal and the subsequent allowance of the appeal.

The court found that the Adjudicator had made an error of law in assessing the compensation for the blinds and painting. The court noted that there was no evidence to support the lessor's claim that she had suffered any loss referrable to the painting or the repair or replacement of the blinds. Consequently, the court granted leave to appeal and allowed the appeal in relation to the compensation for the blinds and painting. The court determined that the appropriate remedy was to substitute the Appeal Tribunal’s decision for the decision of the Tribunal below, thereby refunding the $750 to the lessor.

The final orders of the court were that leave to appeal was granted, the appeal was allowed in relation to the compensation for the blinds and painting, and the tenant, Dimitrios Bellos, was required to pay the sum of $750 to the lessor, Lynette Joy Hobbs, within 14 days of the date of the decision.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal allowed.

3. Dimitrios Bellos pay the sum of $750 to Lynette Joy Hobbs within 14 days of the date of decision.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is too late now to raise the matter at the hearing of an application for leave to appeal.Conclusion The learned Adjudicator made an error of law about the assessment of compensation in respect of the blinds and painting. Leave to appeal should be given and the appeal allowed in so far as it relates to those two items. Given the error is error of law, by s 146 of the QCAT Act one possible method of disposition of the appeal is to substitute the Appeal Tribunal’s decision for the decision of the Tribunal below. That is the appropriate course to follow here. Adopting what I have said above in considering leave to appeal about the relevant circumstances for consideration in determining the lessor’s loss, there was no evidence of any lessor loss referrable to painting or repair or replacement of blinds. Accordingly Mr Bellos should not have been awarded $750 as compensation for those 2 items. That amount of $750 paid Mr Bellos from the bond should be refunded to Ms Hobbs and the order of the Appeal Tribunal is to that effect.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Hobbs v PGK Pty Ltd [2018] QCATA 156

Most Recent Citation

Champion & Anor v Laterma Pty Ltd & Ors [2018] QCAT 392

Cases citing this decision · 3 of 3 shown

Ramsay v Fraser
[2024] QCATA 72 Para 5

…he surrounding circumstances to do justice between the parties.[16] [15] Stockdale & Leggo v Gordon [2017] QCATA 112, [13] [16] Hobbs v PGK Pty Ltd [2018] QCATA 156, [38].…
Roberts v McGrath Estate Agents Springfield
[2021] QCAT 427 Para 4

…and the surrounding circumstances... in light of the underlying principles in order to do justice between the parties.’ (footnotes omitted) [12][2018] QCATA 156. [13]As Acting Senior Member Howe then was.…
Champion & Anor v Laterma Pty Ltd & Ors
[2018] QCAT 392 Para 21

…sition that existed before the breach insofar as the payment of money may achieve that.[71] Rent reduction [70]As noted in Hobbs v PGK Pty Ltd & Anor [2018] QCATA 156. [71] Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351, [1] (Brennan J).…

View all 3 citing cases →

Cases cited in this decision · 10 of 10 shown

Gumland Property Holdings Pty Ltd v Duffy Bros Fruit Market (Campbelltown) Pty Ltd
[2008] HCA 10 Para 36

…pect to loss of bargain damages and mitigation of loss.[13] [13] Gumland Property Holdings Pty Ltd v Duffy Bros Fruit Market (Campbelltown) Pty Ltd [2008] HCA 10.…
Pickering v McArthur
[2005] QCA 294 Para 6

…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, [3].…
Marks v GIO Australia Holdings Ltd
[1998] HCA 69 Para 37

…mage and s 259(3)(b) where there is a major failure of a guarantee associated with the supply of goods the consumer may recover compensation. [15][1998] HCA 69; (1998) 196 CLR 494. [16]Ibid [17] (Gaudron J.)…
Johnson v Perez
[1988] HCA 64 Para 31

…for good reason. But even in contract cases courts depart from the general rule whenever it is necessary to do so in the interests of justice.[8] [7][1988] HCA 64; (1988) 166 CLR 351. [8]Ibid, [6] (Mason CJ.)…
Todorovic v Waller
[1981] HCA 72 Para 33

…tion as he would have been in but for the tort or breach of contract: Wenham v. Ella [1972] HCA 43; (1972) 127 CLR 454, at p 466; Todorovic v. Waller [1981] HCA 72; (1981) 150 CLR 402, at pp 412,442,463; Livingstone v. Rawyards Coal Company (1880) 5 App Cas 25, at p 39. The time at which damages are assessed mus…
Wenham v Ella
[1972] HCA 43 Para 33

…such a sum as will, so far as possible, put him in the same position as he would have been in but for the tort or breach of contract: Wenham v. Ella [1972] HCA 43; (1972) 127 CLR 454, at p 466; Todorovic v. Waller [1981] HCA 72; (1981) 150 CLR 402, at pp 412,442,463; Livingstone v. Rawyards Coal Company (1880)…
Spencer v The Commonwealth
[1907] HCA 82 Para 32

…considered in light of the underlying principles in order to do justice between the parties.[10] [9] Bwllfa and Merthyr Dare Steam Collieries (1891) Ltd v Pontypridd Waterworks Co (1903) AC 426. [10] Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351, [15].…
Livingstone v Rawyards Coal Co
[1880] UKHL 3 Para 33

…In that same case Brennan J said: The general rule as to the date at which damages are to be assessed is subject to the principle governing the measure of damages. A plaintiff who has suffered damage as a result of a defendant's tort or breach of contract is entitled to such a sum as will, so far as…
Livingstone v Rawyards Coal Co
(1880) 5 App Cas 25 Para 33

…HCA 43; (1972) 127 CLR 454, at p 466; Todorovic v. Waller [1981] HCA 72; (1981) 150 CLR 402, at pp 412,442,463; Livingstone v. Rawyards Coal Company (1880) 5 App Cas 25, at p 39. The time at which damages are assessed must be so fixed as to give effect to the governing principle. In giving effect to that principle, m…
(1903) AC 426
(1903) AC 426 Para 32

…erlying principles in order to do justice between the parties.[10] [9] Bwllfa and Merthyr Dare Steam Collieries (1891) Ltd v Pontypridd Waterworks Co (1903) AC 426. [10] Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351, [15].…

Legislation cited in this decision · 1

Residential Tenancies and Rooming Accommodation Act 2008 (Qld)
188(4), 419(3), 420(1)(e) 4 mentions (from Para 29)

CITATION:	Hobbs v PGK Pty Ltd & Anor [2018] QCATA 156
PARTIES:	LYNETTE JOY HOBBS (appellant)
v
PGK PTY LTD (first respondent) DIMITRIOS BELLOS (second respondent)
APPLICATION NO/S:	APL048-18
ORIGINATING APPLICATION NO/S:	MCDT467-17
MATTER TYPE:	Appeals
DELIVERED ON:	16 October 2018
HEARING DATE:	24 September 2018
HEARD AT:	Brisbane
DECISION OF:	Member Howe
ORDERS:	1. Leave to appeal granted. 2. Appeal allowed. 3. Dimitrios Bellos pay the sum of $750 to Lynette Joy Hobbs within 14 days of the date of decision.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where tenant caused damage to blinds during tenancy – where tenant caused damage to walls during tenancy – where the rental house was sold by the lessor prior to hearing – where the lessor claimed the cost of blind repair and painting damaged walls – where the house was sold with the blinds damaged – where there was evidence of the lessor painting the house throughout after each tenancy – where the lessor painted the house throughout prior to sale – whether the lessor suffered any loss – whether the lessor entitled to compensation Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 188(4), s 419(3), s 420 Bwllfa and Merthyr Dare Steam Collieries (1891) Ltd v Pontypridd Waterworks Co (1903) AC 426 Gumland Property Holdings Pty Ltd v Duffy Bros Fruit Market (Campbelltown) Pty Ltd [2008] HCA 10 Marks v GIO Aust Holdings Ltd [1998] HCA 69 Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351 Pickering v McArthur [2005] QCA 294
APPEARANCES & REPRESENTATION:
Appellant:	Self-represented
First Respondent:	Self-represented by Leisa Bennion
Second Respondent:	Self-represented