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Lai v Robina Realty Pty Ltd

Lai v Robina Realty Pty Ltd

Case [2019] QCATA 37 29 March 2019

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Lai v Robina Realty Pty Ltd & Anor [2019] QCATA 37

PARTIES:

CHUN MING LAI
(applicant)

v

ROBINA REALTY PTY and CATHRYN MOONEY

(respondents)

APPLICATION NO:

APL306-18

ORIGINATING APPLICATION NO/S:

MCDT1219/18 (Southport)

MATTER TYPE:

Appeals

DELIVERED ON:

29 March 2019

HEARING DATE:

25 March 2019

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes, Member

ORDERS:

1. The application for leave to appeal is dismissed.

2. No order as to costs.

CATCHWORDS:

RESIDENTIAL TENANCY DISPUTE – where question of fair wear and tear – whether premises vacated (fair wear and tear excepted) in original condition – claims by lessor for compensation – whether award for one head of claim (gardening) was lawfully made – no appellable error shown – application for leave to appeal dismissed

Acts Interpretation Act 1954 (Qld), s 48A
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 83

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 66

Amos v Andrews [2014] QCAT 147
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Filios v Morland (1963) 63 SR (NSW) 331

Fox v Percy (2003) 214 CLR 118
Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611
Pannell v Gun Court Pty Ltd [2012] QCAT 558
Robinson v Corr [2011] QCATA 302
Sali v SPC Limited (1993) 67 ALJR 841
Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 101

Snell v Morgan [2011] QCATA 316
Thompson and Anor v Jedanhay Pty Ltd [2012[ QCATA 246
W (an infant), In re [1971] AC 682

APPEARANCES & REPRESENTATION:

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

Between the years 2011 and 2018[1] Chun Ming Lai (`the Appellant’) leased residential premises at Clear Island Waters, on the Gold Coast. At all material times the owner of the premises was Cathryn Mooney (`the Owner’). Robina Realty Pty Ltd (`Robina’) was her managing agent.
[1]Transcript of hearing 13 November 2018 (`Transcript’) page 9 lines 21 ff.
The Appellant vacated the premises on or about 21 March 2018.[2] Subsequently the Landlady and Robina instituted this minor civil dispute against the Appellant, claiming a total of $2,241.76 for failing to maintain the property as at the time of entry, fair wear and tear excepted,[3] and other items.[4] In view of the fact that the Owner herself appears on the record, the presence of Robina as a party seems otiose[5], but that question need not detain us.
[2]Transcript page 9 lines 35-38.
[3]See General Tenancy Agreement dated 29 September 2017, special term 2.
[4]For example, unpaid water charges.
[5]Note, however, that absent any contrary provision, clause 43(2) of the lease entitles the agent to `stand in the lessor’s place in any application to a…

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 Lai v Robina Realty Pty Ltd

Details

AGLC: Lai v Robina Realty Pty Ltd [2019] QCATA 37
Case: [2019] QCATA 37
Decision Date: 29 March 2019

CaseChat Overview and Summary

Lai brought proceedings against Robina Realty, seeking compensation for alleged breaches of residential tenancy laws, including failure to return the bond and the condition of the premises upon vacating. The case was heard in the Supreme Court of Queensland. The primary dispute centred on the interpretation of the term "fair wear and tear" and whether the premises were vacated in the condition originally handed over, excluding such wear and tear.

The legal issues before the court encompassed the scope of the term "fair wear and tear," which is a subjective assessment, and whether the award for one head of claim, specifically gardening expenses, was justified. The court had to determine whether the decision to award compensation for gardening was within the bounds of reason and whether there was any appellable error in the lower court's decision.

The court examined the evidence and concluded that the lower court had not erred in its assessment of fair wear and tear and in awarding compensation for gardening expenses. The court found that the award was not outside the range of reasonable outcomes and was therefore lawful. The court rejected the argument that the lower court had made an error in law or fact that warranted an appeal. Consequently, the application for leave to appeal was dismissed.

The orders of the court were straightforward: the application for leave to appeal was dismissed, and no order was made as to costs. The decision underscored the importance of the lower court's discretion in assessing fair wear and tear and the parameters within which such assessments should be made.

Orders

Orders of the court

1. The application for leave to appeal is dismissed.

2. No order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Lai v Robina Realty Pty Ltd [2019] QCATA 37

Most Recent Citation

Gold Coast Property Expo v Rhodes [2022] QCATA 120

Cases citing this decision · 1 of 1 shown

Gold Coast Property Expo v Rhodes
[2022] QCATA 120 Para 3

…nts’ exit condition report was an essential element in the agents’ claim. As was explained by Dr J R Forbes in Lai v Robina Realty Pty Ltd & Anor [2019] QCATA 37, [14] section 66 of the RTRAA is designed to ease and expedite the proof of claims. Non-compliance with section 66 does not disqualify a claim, and proof…

View all 1 citing cases →

Cases cited in this decision · 14 of 14 shown

Thompson v Collison
[2017] QCATA 123 Para 14

…mpensation or damages from a tenant in respect of damaged property discovered more than 3 days after receipt of an exit condition report.[20] [20][2017] QCATA 123 at [11].…
Amos v Andrews
[2014] QCAT 147 Para 15

…if other evidence had been available, it could have been adduced, section 66 notwithstanding. [21]See e.g. Transcript page 17 at lines 12ff. [22][2014] QCAT 147. [23][2014] QCAT 147 at [10]. [24][2014] QCAT 147 at [13]. [25]The same comment applies to another case cited by the Appellant, namely Pannell v Gun Cour…
Thompson and Anor v Jedanhay Pty Ltd
[2012] QCATA 246 Para 22

…0]; Thompson and Anor v Jedanhay Pty Ltd [2012[ QCATA 246 at [28]. [33] Robinson v Corr [2011] QCATA 302 at [7]; Thompson & Anor v Jedanhay Pty Ltd [2012] QCATA 246 at [6]. [34] Fox v Percy (2003) 214 CLR 118 at 125-126. [35] for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at [131]; In Re W (an…
Pannell v Gun Court Pty Ltd
[2012] QCAT 558 Para 15

…147 at [10]. [24][2014] QCAT 147 at [13]. [25]The same comment applies to another case cited by the Appellant, namely Pannell v Gun Court Pty Ltd [2012] QCAT 558. As the tribunal noted there, at [20]: `The post tenancy compensation sought by the owner’s agent has not been sufficiently proved to warrant any payment…
Snell v Morgan
[2011] QCATA 316 Para 22

…may differ, a decision is not legally erroneous simply because one conclusion has been preferred to another possible view.[35] [32] Snell v Morgan [2011] QCATA 316 at [10]; Thompson and Anor v Jedanhay Pty Ltd [2012[ QCATA 246 at [28]. [33] Robinson v Corr [2011] QCATA 302 at [7]; Thompson & Anor v Jedanhay Pty Lt…
Robinson v Corr
[2011] QCATA 302 Para 22

…ossible view.[35] [32] Snell v Morgan [2011] QCATA 316 at [10]; Thompson and Anor v Jedanhay Pty Ltd [2012[ QCATA 246 at [28]. [33] Robinson v Corr [2011] QCATA 302 at [7]; Thompson & Anor v Jedanhay Pty Ltd [2012] QCATA 246 at [6]. [34] Fox v Percy (2003) 214 CLR 118 at 125-126. [35] for Immigration and Citizenshi…
Minister for Immigration and Citizenship v SZMDS
[2010] HCA 16

…9 CLR 175 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Filios v Morland (1963) 63 SR (NSW) 331 Fox v Percy (2003) 214 CLR 118 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 Pannell v Gun Court Pty Ltd [2012] QCAT 558 Robinson v Corr [2011] QCATA 302 Sali v SPC Limited (1993) 67 ALJR 841 Secretary of State for Education a…
Aon Risk Services Australia Ltd v Australian National University
[2009] HCA 27 Para 20

…. Inefficiencies in the use of that resource …are to be taken into account’: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at [4]-[5]. It is proper to consider `the claims of other litigants and the public interest in achieving the most efficient use of court resources’: Sali…
Fox v Percy
[2003] HCA 22 Para 21

…tionally, leave may be granted to examine a question of public importance, but few minor civil disputes answer that description. [31] Fox v Percy (2003) 214 CLR 118 at 128.…
Sali v SPC Ltd
[1993] HCA 47 Para 20

…to consider `the claims of other litigants and the public interest in achieving the most efficient use of court resources’: Sali v SPC Limited (1993) 67 ALJR 841 at 843-844. The Nature and Limitations of an Application for Leave…
[1977] AC 1014
[1977] AC 1014 Para 22

…40 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; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151.…
[1971] AC 682
[1971] AC 682 Para 22

…Fox v Percy (2003) 214 CLR 118 at 125-126. [35] 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; Azzopardi v Tasman UEB Industries…
Azzopardi v Tasman UEB Industries Ltd
2002 SC13437 Para 22

…Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151.…
[1977] AC 101
[1977] AC 101

…011] QCATA 302 Sali v SPC Limited (1993) 67 ALJR 841 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 101 Snell v Morgan [2011] QCATA 316 Thompson and Anor v Jedanhay Pty Ltd [2012[ QCATA 246 W (an infant), In re [1971] AC 682 APPEARANCES & REPRESENTATION: This matte…

Legislation cited in this decision · 4

Queensland Civil and Administrative Tribunal Act 2009 (Qld)
32 2 mentions
Residential Tenancies and Rooming Accommodation Act 2008 (Qld)
66 2 mentions (from Para 12)
Acts Interpretation Act 1954 (Qld)
48A 1 mention (from Para 13)
Queensland Civil and Administrative Tribunal Rules 2009 (QLD)
83 1 mention

CITATION:	Lai v Robina Realty Pty Ltd & Anor [2019] QCATA 37
PARTIES:	CHUN MING LAI (applicant)
v
ROBINA REALTY PTY and CATHRYN MOONEY (respondents)
APPLICATION NO:	APL306-18
ORIGINATING APPLICATION NO/S:	MCDT1219/18 (Southport)
MATTER TYPE:	Appeals
DELIVERED ON:	29 March 2019
HEARING DATE:	25 March 2019
HEARD AT:	Brisbane
DECISION OF:	Dr J R Forbes, Member
ORDERS:	1. The application for leave to appeal is dismissed. 2. No order as to costs.
CATCHWORDS:	RESIDENTIAL TENANCY DISPUTE – where question of fair wear and tear – whether premises vacated (fair wear and tear excepted) in original condition – claims by lessor for compensation – whether award for one head of claim (gardening) was lawfully made – no appellable error shown – application for leave to appeal dismissed Acts Interpretation Act 1954 (Qld), s 48A Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 83 Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 66 Amos v Andrews [2014] QCAT 147 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Filios v Morland (1963) 63 SR (NSW) 331 Fox v Percy (2003) 214 CLR 118 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 Pannell v Gun Court Pty Ltd [2012] QCAT 558 Robinson v Corr [2011] QCATA 302 Sali v SPC Limited (1993) 67 ALJR 841 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 101 Snell v Morgan [2011] QCATA 316 Thompson and Anor v Jedanhay Pty Ltd [2012[ QCATA 246 W (an infant), In re [1971] AC 682
APPEARANCES & REPRESENTATION:	This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).