Kuenstner v Ray White Murrumba Downs
[2014] QCATA 169
•7 July 2014
| CITATION: | Kuenstner & Anor v Ray White Murrumba Downs [2014] QCATA 169 |
| PARTIES: | Hans Kuenstner and Julio Kuenstner (Appellants) |
| v | |
| Ray White Murrumba Downs (Respondent) |
| APPLICATION NUMBER: | APL573-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 7 July 2014 |
| DELIVERED AT: | Brisbane |
| ORDER MADE: | The application for leave to appeal is refused. |
| CATCHWORDS: | APPEAL – MINOR CIVIL DISPUTE – RESIENTIAL TENANCY DISPUTE – where claim for landlord’s failure to repair – where statutory notice to repair omitted – where legislation imposes time limit for application to the Tribunal – whether time limit a mandatory condition of jurisdiction – where appellant seeks to introduce additional claim on application for leave to appeal – application refused Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 142 Cameron v Cole (1944) 68 CLR 571 Department of Transport and Main Roads v Hollidge & Anor [2014] QCATA 55 Estate of KM Shaw v Waddell [2014] QCAT 155 Fox v Percy (2003) 214 CLR 118 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Proceedings to date
In their primary application, the applicants (“the tenants”) sued the respondent (“the lessor”)[1] for return of bond moneys, a refund of rent overpaid, compensation for flooding of a bedroom caused by a leaking shower, and redress for a faulty air conditioner. The latter claim was not pursued on trial.
[1]The respondent stands in the place of the actual lessors, Karl Brian Deecke and Julieanne Renay Schultz, by virtue of the General Tenancy Agreement dated 18 December 2012.
The Tribunal allowed the claim for bond moneys in the amount of $275, and dismissed both the claim for rent allegedly overpaid, and the claim for compensation.[2]
[2]Orders made at Pine Rivers on 6 December 2013.
The Tribunal’s reasons for dismissing the tenants’ claims for rent overpaid and compensation may be shortly stated are as follows:
a) That the claim for rent overpaid was based on a mathematical miscalculation, and in fact no overpayment occurred.[3]
b) That the claim for compensation is barred by failure to comply with a statutory time limit.
[3]Reasons for decision 6 December 2013 page 1 lines 39 – 47, page 2 lines 1 – 7.
Claim not pursued
In their application for leave to appeal[4] the tenants foreshadow the following ground of appeal, namely that they made a ‘verbal request to [the lessor] to repair water leak and air conditioner’.
[4]Leave is necessary in a case of this kind: QCAT Act s 142(3)(a)(i).
But while the application for leave claims $500 for failure to repair the air conditioner,[5] there is no mention of that matter in the transcript of the hearing. After the questions of rent and repairs to the plumbing were discussed at length, the learned Member asked Mr Kuenstner senior about the full extent of his application:
Member: So, that’s all that you were seeking to claim today?
Mr H Kuenstner: Well, I’m claiming the – the monies on the rent payments and the bond.
Member: Yes.
Mr H Kuenstner: And compensation for not being able to use the master bedroom.[6]
[5]Attachment to application for leave to appeal filed 24 December 2013 paragraph 7.
[6]Transcript of hearing 6 December 2013 page 13 lines 36 – 46.
It is hardly surprising, then, that there is no reference to the air conditioner in the Member’s decision. It follows that the application for leave attempts to raise a head of claim not pursued in the primary hearing. That is not a permissible procedure.
The remaining issue – water leakage and time limit
The application for leave does not challenge the Member’s finding on the issue of overpaid rent. It follows that the only matter still in contest is the dismissal of the claim for “flooding” of the bedroom.
The Member dismissed that claim upon this ground:
[T]he tenants’ rights in this matter are contained in the Residential Tenancies and Rooming Accommodation Act. Section 419 of that Act requires that tenants approach the Tribunal in relation to this matter within six months of finding the problem. ... The tenant[s], unfortunately, [are] out of time for this claim, with respect to compensation for that. It is to be noted that [they have] not filed a complaint in Form 11[7] as would be required. And also [they have] renewed the lease within the period. All these aspects ... [are] fatal to [their] claim for compensation and [it] is dismissed.[8]
[7]Residential Tenancies and Rooming Accommodation Act 2008 s 325 (notice to remedy breach).
[8]Reasons for Decision 6 December 2013 page 3 lines 28 – 46, page 4 lines 1 – 2.
Section 419 of the Residential Tenancies and Rooming Accommodation Act 2008 relevantly provides:
Applications about breach of agreements
(1)This section applies if any of the following claim there has been a breach of a term of a residential tenancy agreement ...
(a) a lessor or tenant under the residential tenancy agreement
(b) ...
(2)The lessor or tenant may apply to [QCAT] for an order about the breach.
(3) The application must be made within 6 months after the lessor or tenant ... becomes aware of the breach.
According to the tenants’ own evidence they became aware of the “flooding” problem on or about 5 June 2012.[9] They made their application to the Tribunal after 27 September 2013[10] – that is, at least nine months late.
[9]Transcript of hearing 6 December 2013 page 3 line 38 (H Kuenstner).
[10]See letter from Residential Tenancies Authority to Hans E Kuenstner advising of right to apply to the tribunal, 27 September 2013.
As the word “must” in section 419(3) indicates, observance of the relevant time limit is mandatory, defining and limiting the jurisdiction of the Tribunal.[11] The Tribunal has no power or discretion to disregard it, or to grant an extension of time.
[11]Cameron v Cole (1944) 68 CLR 571 at 584; Watkins v Queensland Building Services Authority [2013] QCAT 535 at [15]; Estate of KM Shaw v Waddell [2014] QCAT 155 at [40]; Department of Transport and Main Roads v Hollidge & Anor [2014] QCATA 55 at [8].
No error shown
It follows that the learned Member’s decision on the water damage claim – the only issue remaining – was clearly correct; an appeal against that decision would necessarily fail. The same fatal objection, not to mention the “Form 11” objection, would apply to the foreshadowed claim with respect to the air conditioner, had it been pursued. That was a live issue as long ago as July 2012,[12] some 14 months before the tenants approached the Residential Tenancies Authority,[13] let alone this Tribunal. There is, therefore, no foundation for a grant of leave to appeal, and leave will be refused.
[12]See email Ray White to Bob Whitelaw 24 July 2012.
[13]Tenants’ dispute resolution request 25 September 2013.
Conditions and limits of applications for leave
In view of the attempt to introduce, on appeal, a head of claim not pursued at the trial, it may be useful to summarise the limits of an application for leave to appeal.
Understandably, but unfortunately, the legal limitations of applications for leave to appeal are not appreciated by many litigants in person. Those restrictions could well be more prominently advertised to would-be appellants, particularly where minor civil disputes are concerned.
The legislative purpose of a leave-to-appeal provision is to ensure that the primary decision will normally be final. Before an appeal will be entertained, the appellant must demonstrate an arguable case of error, which, if left uncorrected, will result in substantial injustice. “Error” means an error of law, or a finding of fact that is not merely debateable, but rationally indefensible (which is also an error of law). Exceptionally, leave may be granted to examine a question of public importance, but few minor civil disputes answer that description.
An essential, and much misunderstood point is that an application for leave to appeal is not an opportunity to re-run the trial. It is not an occasion to repeat and reargue evidence that was reasonably rejected by the first decision-maker, or to present material that could have been put before him, but was not.[14] Certainly it is not nearly enough for an applicant to express disappointment, or to entertain a subjective feeling that justice has not been done.[15]
[14]Snell v Morgan [2011] QCATA 316 at [10]; Thompson and Anor v Jedanhay Pty Ltd [2012] QCATA 246 at [28].
[15]Robinson v Corr [2011] QCATA 302 at [7].
It is not an appellable error to prefer one version of the facts to another, or to give less weight to one party’s case than he or she thinks it deserves. Findings of fact will not be disturbed if they have rational support in the evidence, even if another reasonable view is available.[16] Where reasonable minds may differ, a decision is not erroneous simply because one conclusion has been preferred to another possible view.[17]
[16]Fox v Percy (2003) 214 CLR 118 at 125 – 126.
[17]Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at [131]; In Re W (an infant) [1971] AC 682 at 700; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025.
Those are the principles I am bound to apply here.
ORDER
The application for leave to appeal is refused.
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