Lane & Mares v Niedzel Pty Ltd t/as Across Country Real Estate and Livestock - [2023] QCATA 115

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Lane & Mares v Niedzel Pty Ltd t/as Across Country Real Estate and Livestock [2023] QCATA 115

PARTIES:

DIXIE LANE (FIRST APPLICANT)
AND
JOSHUA MARES (SECOND APPLICANT)
(APPLICANTS)

v

NIEDZEL PTY LTD T/AS ACROSS COUNTRY REAL ESTATE AND LIVESTOCK

(Respondent)

APPLICATION NO/S:

APL313-21

MATTER TYPE:

Appeals

DELIVERED ON:

18 September 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Forrest SC

ORDERS:

1.     That leave to appeal is granted.

2.     Appeal allowed.

3.     That the Orders made on 21 September 2021 are set aside to the extent they required the RTA to pay out the amount of $66.40 to the Respondent in this appeal.

4.     That the sum of $66.40 be paid to the Second Applicant either by the RTA if that sum is still held by it, or by the Respondent in this appeal if that sum has already been paid by the RTA to the Respondent pursuant to the Orders now set aside.

5.     That the Respondent in this appeal pay the Applicants the further sum of $100 being the filing fee paid by them on filing their Application for Leave to Appeal.

CATCHWORDS:

APPEAL – RIGHT OF APPEAL – FROM QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – BY LEAVE OF TRIBUNAL – where the Applicants seek leave to appeal a decision by a Magistrate sitting as a Tribunal Member in a Minor Civil Dispute – where the Applicants seek leave to appeal questions of fact – whether there would be substantial injustice if leave was not granted

APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH MEMBER’S FINDINGS OF FACT – FUNCTIONS OF APPEAL TRIBUNAL – IN GENERAL – where the Respondent’s agent applied to the Tribunal to use part of the Applicants’ bond held by the Residential Tenancies Authority to cover the costs of cleaning windows alleged to be dirty – where the Tribunal Member at first instance ordered payment of the cleaning costs – whether the Tribunal Member erred sufficiently to justify allowing the appeal by not engaging with evidence that windows were dirty on the Applicants’ entry to the property and clean on their vacation

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 136D(2), s 188

Pickering v McArthur [2005] QCA 294, cited

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) by consent of the parties

REASONS FOR DECISION

This is an application for leave to appeal and, if leave is granted, an appeal against the orders of a Magistrate sitting as a Tribunal Member in a Minor Civil Dispute – Residential Tenancy Dispute.
The substantive dispute between the parties was whether part of the tenants’ rental bond should not be returned to them, but be retained by the Respondent’s agent to cover the cost of window cleaning and other yard maintenance work upon the tenants exiting the property.
Background
In late May 2020, the Second Applicant and another person, as tenants, entered into a General Tenancy Agreement in respect of a property situated in a Queensland country town. That Agreement was electronically signed by the Respondent’s agent, Ms Z, at around the same time. The rental bond was paid by the Second Applicant with some money apparently contributed by the Queensland Government’s Department of Housing. The term of the tenancy was from 29 May 2020 to 28 May 2021. There is no dispute that the First Applicant was an approved tenant also.
The Applicants were provided with a completed Entry Condition Report on 29 May 2020. It appears to have been completed by the agent. It recorded some observed points of minor damage around the house. Relevantly, it recorded that the windows and screens in each of the rooms that had windows were clean. This was done by way of a ‘Y’ appearing in a box next to the words ‘windows/screens’ in a column headed ‘clean’. The Entry Condition Report was initialled by the Second Applicant, the other tenant, and the First Applicant, but it recorded that they had provided a six page ‘extra report’ that was attached to the pro forma Report.
The attached extra document recorded in handwriting additional detailed remarks in respect of each room in the house and was initialled by the Second and First Applicants and the other tenant. Relevantly, under the sub-heading ‘entry/front yard’ the following sentence appears:-
Outside windows at front not clean
Further, under the sub-heading ‘front room bedroom’ the following sentence appears:-
Window cill (sic) and frame paint damaged, dints, holes + window dirty
This can only be regarded as the tenants taking issue with the claim in the pro forma Report that the windows were all clean at the commencement of their tenancy. There is no evidence that their position was thereafter ever disputed by the agent.
There is no evidence that the tenants’ occupancy of the property for the year of the tenancy was problematic as between them and the Respondent in any particular way. Indeed, there is evidence that the tenants replaced the old mailbox at their own cost and paid half of the costs of installing an air conditioning unit in one of the rooms during the tenancy.
On Friday, 21 May 2021, the Applicants gave notice that they intended to vacate the property at the end of the tenancy and indicated they intended to vacate the property by midnight on 4 June 2021. The third person had left the property during the course of the tenancy.
The Applicants provided vacant possession of the property on 1 June 2021. They were two weeks in advance with their rental payments, thus $300 in credit. On 2 June 2021, they sent an email to the agent. It attached an Exit Condition Report that they had prepared but which they acknowledged was unsigned at that time. They attached the initial Entry Condition Report and the handwritten document that had accompanied that, which they had prepared. They advised that they had taken before and after photographs in respect of their cleaning of the property which they had stored on a hard drive and which they would make available. The tenants had recorded, relevantly, that all the windows were clean. Indeed, there is evidence that they assert they cleaned all windows on the inside on 25 May 2021, and all windows on the outside on 28 May 2021. The Applicants gave evidence that the house was “cleaned to a higher standard” than when they moved in. They gave evidence that at the end of their tenancy the carpets were “professionally cleaned and a professional pest control company was contracted for flea control” which they paid for. There was evidence that they had provided the agent with evidence of that. They gave evidence, not disputed, that they cleaned the outside water tank at the request of the agent when they left the property, even though it was dirty and “marked with green slime” at the commencement of their tenancy. There is evidence that the Second Applicant spent three hours cleaning that tank.
On 4 June 2021, the agent contacted the Applicants and asked them to return to the property to undertake some more cleaning, including some of the windows. She sent them an Exit Condition Report that she had completed herself upon inspection of the property. It did not have the boxes checked in the ‘clean’ column next to ‘windows/screens’ in several of the rooms. On 5 June 2021, the Applicants did go back to the house and do more cleaning. They gave evidence that they did that, including lifting windows out of their frames and cleaning them on both sides of the glass.
On 7 June 2021, the agent wrote to the Applicants and thanked them for attending the property and for carrying out some of the extra cleaning that was required. She actually told them that she could see that they had cleaned the windows in the main bedroom but pointed out they were still “very smudgy”. She also observed that the “outside of the windows in the bottom bedroom off the lounge room have not yet been cleaned.” She requested that they get back to her about the remaining matters, that also included weed spraying in the yard.
The dispute about the cleaning was not able to be resolved between them after that and a few weeks later, the agent wrote to them again and sent them invoices for some weed spraying and for one hour of window cleaning. The Applicants disputed these claims.
On 8 August 2021, the agent filed the application for Minor Civil Dispute – Residential Tenancy Dispute in the Magistrates Court in the town. The Magistrate when hearing the matter was acting as the Queensland Civil and Administrative Tribunal (“QCAT”).
The agent represented in that application form that there had been a conciliation process between them and the tenants with the Residential Tenancies Authority (“RTA”) and provided the number of the Notice of Unresolved Dispute that is a necessary step before QCAT can exercise jurisdiction.[1]
[1] See s 416 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld)
The agent claimed a number of amounts from the Applicants relating to yard maintenance and an amount of $38.50 for window cleaning plus $27.90 for the filing fee. The matter was heard by the Magistrate acting as a QCAT Member on 2 September 2021. The agent appeared in person and addressed the Tribunal. So too, did the First Applicant.
The Tribunal Member gave each of them a further week to provide any further photographic evidence that was available to them. Each did that and, on 21 September 2021, the Tribunal Member handed down the decision.
In essence, the Tribunal Member found for the agent in respect of the claim for window cleaning but rejected the claim that related to the weed spraying in the yard. The Order made was for the RTA to pay out the amount of $66.40 to the agent for the window cleaning cost of $38.50 and $27.90 for the QCAT filing fee. The balance was to be repaid to the Department of Housing in a certain amount and the rest to the Second Applicant.
In respect of the windows, the Tribunal Member’s findings were very brief. He said that there was confusion about exactly how each party described the relevant rooms where the windows were alleged to be dirty. He mentioned that he had given each of them leave to file more photographs after the hearing. He said:-
The Agent’s photos are inconclusive as to the state of some windows depicted but do show that at least one was not clean.
The Tribunal Member said the First Applicant’s photo was of the kitchen window, not the bedrooms. He observed that the agent said the amount of $38.50 claimed is the minimum call out fee for the cleaner for one hour. Incorrectly, I am satisfied, he said that the Applicants had not provided, as statutorily required, an Exit Condition Report. They had. He said the agent did her own Exit Condition Report as a consequence of not having been provided with one by the Applicants. Although it is correct that the agent did her own Exit Condition Report, it was not because the Applicants had not provided one. The Tribunal Member says the agent’s Exit Condition Report claims that two windows needed cleaning. In the end, the Tribunal Member said he was satisfied that at least one window required cleaning and that the $38.50 was the minimum call out fee, so he was satisfied that this was a reasonable charge to be paid by the Applicants as “they are shown as clean on the Entry Condition Report.”
The Applicants filed an Application for Leave to Appeal on 12 November 2021.
I was sworn in as a Sessional Judicial Member of QCAT on 24 May 2022. Sometime in the months after that, this matter was assigned to me to determine on the papers, along with many others. It is reasonably well known that QCAT struggles to meet its statutory obligations within the resources it is allocated by Government. I regret the length of time it has taken me to determine this matter and any distress the delay has caused any of the parties. It is hoped delivery of this decision will bring the matter to a close for the parties.
My Determination
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.[2] Leave to appeal is also required where an appeal is in relation to questions of fact and/or mixed fact and law.[3] 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.[4]
[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3)(a)(i) (“QCAT Act”).
[3] QCAT Act, s 142(3)(b).
[4] Pickering v McArthur [2005] QCA 294, [3].
In their Application for leave to appeal, the Applicants briefly listed the grounds upon which they ground their appeal, if leave is granted. They assert that there are questions of fact and law involved and that “not all of the available facts were considered in this case.” They assert that they were denied procedural fairness and that the agent “breached s 216(a)” of the QCAT Act.
When one looks at this Application at first blush, noting that it is only truly about the relatively small amount of $66.40, which is the amount the Applicants seek in repayment to them if they succeed, one might think that amount is barely sufficient to justify the granting of leave to appeal. However, for many tenants, particularly those who rely on Department of Housing assistance and those who are young, that amount of money can make quite a difference to them on a week-to-week basis. Plainly it does to the Applicants in this case.
With respect to his Honour, the Tribunal Member, I have identified a couple of material errors of fact that he has made in this case in the determination of the claim relating to the windows. He made his decision based on the incorrect finding that the Applicants had not provided, as obliged by statute, an Exit Condition Report completed by them on vacating the property. They had, and in that they had said that the windows were clean. He also referred to the Entry Condition Report and pointed out that it listed all the windows as clean on entry, but in his Reasons he did not acknowledge or refer to the evidence that there were six pages of handwritten details about the condition of the premises on entry that had been attached to the Entry Condition Report and returned to the agent by the Applicants. In oral exchange between the Tribunal Member and the First Applicant at the hearing, the First Applicant referred to that document and took the Tribunal Member to two specific entries that showed that there were windows that were not actually clean when they commenced their tenancy. That was not disputed in any way by the agent. She made no complaint or opposition to that assertion at the hearing and there is no evidence that the agents did not accept the detailed assertions of the Applicants in that six-page document provided to them at the outset of the tenancy. The learned Tribunal Member did not engage with any of that evidence, nor give any explanation or reason for not accepting that. Nor did he discuss in any way its relevance to the final determination.
Furthermore, the learned Tribunal Member did not engage at all with the First Applicant’s evidence that she had cleaned the windows multiple times on exit or the factual question about the length of time between the Applicants’ cleaning of the windows and the taking of the photograph by the agent that persuaded him that at least one of the windows was dirty on exit. That was likely relevant to the question of whether the windows might have been cleaned but simply become dirty again in the time in between. But critically, if one of the windows was indeed dirty on exit, notwithstanding the First Applicant’s evidence that she had cleaned them multiple times, acceptance of that fact, (which on the evidence appears to have been a finding available to the Tribunal Member given the existence of a photograph that he referred to), was not in any way considered against the evidence overlooked by the Tribunal Member in his reasons that some of the windows were asserted to be dirty when the Applicants took up occupation.
Pursuant to s 188 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (“the RTRAA”) the tenants’ obligation is to “keep the premises and inclusions clean, having regard to their condition at the start of the tenancy” and to “leave the premises and inclusions, as far as possible, in the same condition they were in at the start of the tenancy, fair wear and tear excepted.”
Pursuant to s 136D(2) of that same Act, QCAT may make any order about payment of the rental bond it considers appropriate having regard to the efforts made by the tenant to comply with the tenant’s obligation under s 188(4) and the evidence supporting any claim on all or part of the rental bond. With respect, I am satisfied that the learned Tribunal Member did not engage in any meaningfully discernible way with the law as to the tenants’ obligations set out in s 188 of the RTRAA, particularly in light of the undisputed evidence about the Applicants’ recording of the state of at least one of the windows on entry and all of the other evidence as to how they left the premises in a cleaner overall state than it was when they entered their tenancy.
I am, for the reasons outlined, satisfied that the learned Tribunal Member’s decision is replete with sufficient error to set aside his Orders on appeal. In this particular case, particularly having regard to the plain importance of the said amount of $66.40 to the Applicants, I am therefore satisfied that they would suffer a substantial injustice if leave to appeal was not granted.
I will grant the Applicants leave to appeal and will find in their favour in the appeal. In the circumstances, and having regard to all of the evidence in the matter, most particularly the unchallenged evidence that even if one window was still dirty when they vacated the premises that at least one window was dirty when they took up occupation in the first place, I am satisfied that they, therefore, left the premises, as far as possible, in the same condition, at least, that they were in at the commencement of their tenancy. As such, I will set aside the Tribunal’s Orders of 21 September 2021 and order that the additional amount of $66.40 is to be paid to the Second Applicant, Joshua Mares, either by the RTA out of any bond still held by it or by the Respondent if the RTA has already paid that sum to the Respondent pursuant to the Orders hereby set aside. I will also order that the Respondent pay the Applicants the filing fee they paid on filing the Application for Leave to Appeal in the sum of $100.
Accordingly, I make the orders set out at the commencement of these written reasons.