Kerr v Kendall
[2010] QCATA 111
•10 December, 2010
| CITATION: | Kerr v Kendall [2010] QCATA 111 |
| PARTIES: | Sharyn Kerr (Applicant/Appellant) |
| v | |
| William Kendall and Jodee Kendall (Respondents) |
APPLICATION NUMBER: APL163 -10
| MATTER TYPE: |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Justice Alan Wilson, President Peta Stilgoe, Member |
DELIVERED ON: 10 December, 2010
DELIVERED AT: Brisbane
ORDERS MADE: 1 Grant leave to appeal;
2 Allow the appeal, and set aside the order of the adjudicator;
3 Order that:
(a) The proceeding be returned to the tribunal for determination of the quantum of the water bill payable by the respondents, on the papers;
(b) The applicant shall file in the tribunal, and serve on the respondent, any material on which she relies within 14 days of receipt of this decision;
(c) The respondents shall file and serve any material in reply within 14 days of receipt of the applicant’s material.
| CATCHWORDS : | RESIDENTIAL TENANCIES – COMPENSATION – WATER DAMAGE – LEAVE TO APPEAL – where tenancy agreement provided that tenant pay the water charges – whether premises were water wise – whether certificate required – whether learned member erred Queensland Civil and Administrative Tribunal Act 2009 s142(3)(a) Chambers v Jobling (1986) 7 NSWLR 1, cited Commissioner of Taxation v Baffsky [2001] NSWCCA 332, cited Dearman v Dearman (1908) 7 CLR 549, cited Fox v Percy (2003) 197 ALR 201, cited |
APPEARANCES and REPRESENTATION:
This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
President:
[1] In this matter the Appeal Tribunal is comprised of Ms Stilgoe, a QCAT Member, and me. I have had the advantage of reading her reasons in draft. I agree with them, and with the orders she proposes.
Member Ms Peta Stilgoe:
[2] Mr and Mrs Kendall rented a home owned by Mrs Kerr. They vacated on 24 April 2010. At that time, the Residential Tenancies Authority held a bond of $4,400.00. A notice of claim of bond was issued on 29 April 2010. The parties’ dispute over the bond was heard by a QCAT adjudicator on 13 July 2010. The learned Adjudicator ordered that Mrs Kerr receive $1,257.00 for unpaid rent and $400.00 compensation for damage to the home during the period of the tenancy, with the balance of the bond payable to Mr and Mrs Kendall.
[3] Mrs Kerr has applied for leave to appeal the decision. She says that the learned Adjudicator erred in:
a. Failing to give reasons for his decision;
b. Failing to explain why he awarded $400:00 out of a claim of $4,066.00;
c. Not considering Mrs Kerr’s evidence; in particular, Mrs Kerr contends that the learned Adjudicator did not look at the photos of the damage to the floor properly;
d. Failing to look at photos showing damage to the walls;
e. Wrongly deciding that Mrs Kerr had not given Mr and Mrs Kendall an opportunity to rectify the damage;
f. Wrongly determining that Mrs Kerr needed a certificate to prove the house was water-wise to enable reimbursement for water costs;
[4] Mrs Kerr also complains that the learned Adjudicator lacked impartiality and had a preconceived, negative view of her and her husband as evidenced by comments after the hearing.
[5] This is an appeal from a minor civil dispute, so leave is necessary: QCAT Act, s142(3)(a).
Failure to give reasons
[6] The learned Adjudicator did give reasons for his decision. He found that there was damage to the floor and that painting was necessary[1]. It is implicit in his comments that the learned Adjudicator also found that Mrs Kerr’s claim for water costs would not succeed unless she had a water wise certificate[2].
[1] Transcript page 1-17 at lines 25 and 26
[2] See transcript, page 1-7 at lines 47 to 50
[7] The only matter on which the learned Adjudicator does not comment is the cost of cleaning. It is also true that the learned Adjudicator did not explain why he formed the view that $400.00 was reasonable compensation for Mrs Kerr.
[8] In QCAT’s minor civil disputes jurisdiction, giving immediate oral decisions accords with the spirit and purpose of the QCAT Act. Decisions in that busy jurisdiction will not be exposed to criticism which fails to acknowledge the circumstances in which they are given, or the pressure of the adjudicator’s caseload. That proposition is not exclusive to the minor civil disputes jurisdiction, or the taxing work of QCAT’s adjudicators; as Spigelman CJ remarked in Commissioner of Taxation v Baffsky [2001] NSWCCA 332 at [49]:
It is not appropriate to parse and analyse judgments given on an ex tempore basis by judges of the District Court, who have a considerable caseload.
[9] Although the learned Adjudicator’s reasons are lacking in detail and particularity, I am not minded to grant Mrs Kerr leave to appeal for this reason alone. She must also demonstrate that this is a case in which leave is necessary.
Leave to appeal
Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and reasonable prospect of the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?
I cannot see that there is any question of general importance involved in this appeal, where a decision would be to the public advantage. Nor am I able to see any error in the decision sought to be appealed which involves or creates, or establishes, a substantial injustice – or, indeed, any injustice – to Mrs Kerr.
In Tyler v Queensland Building Services Authority[3] the appellant argued that, if leave was not given, he would be required to complete work for which he had not been paid. Judge Ryrie did not consider that this amounted to “substantial injustice”. Similarly in Bucknell v Robins[4] the Court of Appeal was of the view that financial disadvantage, in the absence of hardship did not amount to “substantial injustice”.
[3] [2010] QDC 40
[4] [2008] QCA 214
Mrs Kerr is in no different position; certainly, if leave is refused she will be denied compensation to which she considers she is entitled, but there is no evidence that this will cause her financial hardship.
For these reasons, ordinarily, Ieave would not be granted. However, there is one respect in which Mrs Kerr can show a reasonably arguable case of error and a reasonable prospect of substantive relief. Thus, for the reasons that follow, leave should be granted.
The merits
Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it[5].
[5] Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 197 ALR 201 at
207, 208
An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case[6]. 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.[7]
[6] Chambers v Jobling (1986) 7 NSWLR 1 at 10
[7] Fox v Percy (supra) at 209 per Gleeson CJ, Gummow an Kirby JJ
During the course of his reasons, Mrs Kerr interrupted to draw the learned Adjudicator’s attention to the scratched floor. Mrs Kerr told the learned Adjudicator “That’s the most significant damage…”[8] It cannot be said that the learned Adjudicator did not consider the damage. He drew a different conclusion from that urged upon him by Mrs Kerr but the conclusion was open to him, and I can find no reason to set it aside.
[8] Transcript page 1-16 at lines 20 and 21
The learned Adjudicator also accepted that there was some damage to the walls but he did not accept the nature and extent of that damage. He had access to two separate exit condition reports and a number of photos. The learned Adjudicator specifically found that “the matter has been well and truly overplayed by the landlord in this case.”[9] The learned Adjudicator had the advantage of hearing and observing the parties. There is nothing in the transcript that indicates the Appeals Tribunal should take a contrary view.
[9] Transcript page 1-17 at lines 28 and 29
The learned Adjudicator did not make a finding on whether Mr and Mrs Kendall were afforded the opportunity to rectify any damage. Given that he accepted that there was some compensation due to Mrs Kerr, it appears that the learned Adjudicator did not consider it a relevant consideration. I can see nothing in the transcript that would persuade me to take a different view.
The learned Adjudicator implicitly determined, however, that Mrs Kerr could not recover any compensation for excess water charges because the regulations required her to produce a certificate that the home was ‘water wise’. The learned Adjudicator erred in that respect. Regulation 17 of the Residential Tenancies and Rooming Accommodation Regulation 2009 provides that the tenant must pay an amount for water consumption if:
a. the tenant is enjoying or sharing the benefit of a water service to the premises; and
b. the premises are individually metered for the supply of water;
c. the agreement states that the tenant must pay for water supplied to the premises.
The tenant does not have to pay for water if the premises are not water efficient: s17(3) of the Regulation. The water efficiency requirements are prescribed in s22 of the Regulation. A certificate that premises are water wise is one way of complying with the regulation, but it is not the only way.
The tenancy agreement did require that Mr and Mrs Kendall pay for the water. Mrs Kerr told the learned Adjudicator that she noted the WELS compliant taps on the entry condition report. The evidence suggests that the home met the water efficiency requirements of s22. In fact, Mr and Mrs Kendall did not deny Mrs Kerr’s evidence in that regard. Therefore, Mr and Mrs Kendall should have paid the water bill.
Mr and Mrs Kendall say that they should not have to pay the water charge because the pool needed regular filling and Mrs Kerr agreed that the pool was losing water. At the hearing, Mrs Kerr produced a report from Australian Leak Detection that showed there were no pool leaks. Because of that report, Mrs Kerr’s explanation was effectively corroborated and the ‘compelling inference’ is that Mr and Mrs Kendall should pay for the water used during the period of their tenancy. They should also pay the cost of Australian Leak Detection’s report.
Unfortunately, the water bill is not in the tribunal papers, nor does the transcript deal with the amount claimed. For that reason, the proceeding should be returned to the tribunal for reconsideration of what amount is payable by Mr and Mrs Kendall in respect of the water charges.
I note Mrs Kerr’s complaints about the learned Adjudicator’s alleged bias. As I have already mentioned, the conduct of an Adjudicator must be viewed in the context of his considerable caseload. I can find no evidence of bias, and I am not prepared to set aside the learned Adjudicator’s decision on this basis.
Conclusion
The learned Adjudicator erred in determining that Mrs Kerr could not claim for water usage unless she had a water wise certificate. Because Mrs Kerr can show a reasonable case of error, and a reasonable prospect of substantive relief, leave to appeal should be granted.
The proceeding should be returned to the tribunal for reconsideration of the quantum of the water bill payable by Mr and Mrs Kendall, subject to these directions:
a. Mrs Kerr should file and serve any material on which she relies within 14 days of receipt of this decision.
b. Mr and Mrs Kendall should file and serve any material in reply by 24 January 2011.
c. The quantum of the water charges payable to Mrs Kerr will be determined on the papers.
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