Kerr v Kendall (No 2)

[2011] QCATA 29

CITATION: Kerr v Kendall (No 2) [2011] QCATA 29

PARTIES:	Sharyn Kerr (Applicant/appellant)
v
William Kendall and Jodee Kendall (Respondents)

APPLICATION NUMBER: APL163-10

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT:  Brisbane

DECISION OF: Justice Alan Wilson, President
Peta Stilgoe, Member

DELIVERED ON: 28 February 2011

DELIVERED AT: Brisbane

ORDERS MADE: The respondent shall pay the appellant $835.88 on or before 28 March 2011.

CATCHWORDS:

RESIDENTIAL TENANCIES – where tenancy agreement provided that tenant pay the water charges – where Appeal Tribunal allowed appeal in relation to water charges and returned the proceeding to the tribunal for determination of the quantum of those charges – where landlord provided copies of water charges – where landlord filed material claiming additional charges that were not water charges – whether additional charges recoverable as part of this appeal

Queensland Civil and Administrative Tribunal Act 2009, s 150
Residential Tenancies and Rooming Accommodation Regulation 2009, regs 17(3), 22

APPEARANCES and REPRESENTATION (if any):

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

1. On 10 December 2010, the Appeal Tribunal allowed Mrs Kerr’s appeal.  An order was made that the proceeding be returned to the tribunal for determination of the quantum of the water bill payable by Mr and Mrs Kendall.

1. The Tribunal allowed the parties to file further material about the quantum of the water charges because the water bills were not in evidence before the learned Adjudicator and Mrs Kerr could not, when asked, separate the water charges from the $1,365.85 she claimed for water, pool chemicals and the leak detection costs.

1. In purported compliance with that order, Mrs Kerr has filed material claiming:

a.    $835.88 for water charges;

b.    $330.00 for the cost of a report from Australian Leak Detection;

c.    $461.50 for pool chemicals;

d.    $80.00 for cleaning costs.

1. The Appeal Tribunal’s order was not an invitation to Mrs Kerr to reopen her claim for chemical costs, the cost of the leak detection report or for any other item already considered by the learned Adjudicator.  The provision of material in relation to these items is either an appeal against the Appeal Tribunal’s decision or a further, belated, attempt to appeal the original decision.  Whatever its character, the additional material cannot now be considered by the Tribunal.

1. Appeals against the Appeal Tribunal’s decision can be made only to the Court of Appeal on a question of law and with the leave of the Court: s 150 QCAT Act. An appeal from the learned Adjudicator has been made and determined; any further application for leave to appeal is out of time.

1. Mrs Kerr has provided copies of water invoices that total $835.88.  Although, technically, the return of the proceeding to the Tribunal means that the final order ought to be made by an adjudicator, we see no reason not to expedite and simplify the process by ordering that Mr and Mrs Kendall pay that amount to Mrs Kerr within 28 days.