Living Property Management v Shearer & Anor

[2024] QCATA 23

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Living Property Management v Shearer & Anor [2024] QCATA 23

PARTIES:

LIVING PROPERTY MANAGEMENT
(APPLICANT/APPELLANT)

v

JOSHUA SHEARER

(first respondent)

And

MICHAELA SLEGERS

(second respondent)

APPLICATION NO/S:

APL364-22

ORIGINATING APPLICATION NO/S:

MCDT133/22 (Redcliffe)

MATTER TYPE:

Appeals

DELIVERED ON:

27 February 2024

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

1.     Leave to appeal is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where decision in a residential tenancy dispute awarded the bond to the tenants – where parties in dispute over cause of damage to lawn during tenancy – where no errors in the original decision identified – where application for leave to appeal or appeal is an attempt to relitigate – where leave to appeal refused 

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 143

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 188

Australian Broadcasting Commission v Bond (1990) 170 CLR 321

Cachia v Grech [2009] NSWCA 232
Dearman v Dearman (1908) 7 CLR 549, 561
Fox v Percy (2003) 214 CLR 118, 128.
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
Greg Ritchie v Harcourts Broadbeach/Mermaid Waters [2024] QCATA 15
Hempel v Richardson & Wrench Hervey Bay [2018] QCATA 170
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

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).

REASONS FOR DECISION

What is this application about?

1. On 7 October 2022 the applicants filed an application in a residential tenancy dispute (MCDT133/22 - Redcliffe) against their former tenants claiming the bond then held by the Residential Tenancies Authority in the sum of $2,080.00 as compensation for costs incurred by the property owners to replace the lawn after the respondent tenants vacated. It was alleged the lawns were damaged by misuse or neglect by the tenants and that the tenants had breached their obligations under section 188 of the Residential Tenancies and Rooming Accomodation Act 2008 (Qld) (‘RTRAA’) to return the property at the end of the tenancy in the condition it was in at the start, fair wear and tear excepted.

2. Following the hearing on 14 November 2022, the Tribunal below awarded the bond to the tenants, having decided that the damage to the lawn was caused by a failure to properly compact the fill when landscaping the property, and by inadequate drainage in the backyard which caused water to pool, neither of which were the tenants’ responsibility.[1]

   [1]Transcript, page 1-16 to 1-17; Decision made 14 November 2022.  

3. The applicants want to appeal the decision but require leave to do so.[2]   I have refused leave for the reasons that follow.  

   [2]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 143(3).

Application for leave to appeal

1. In determining whether to grant leave, the Appeal Tribunal must be satisfied that:

   (a)there is a reasonably arguable case of error in the primary decision;[3]

   (b)there is a reasonable prospect that the appellant will obtain substantive relief;[4]

   (c)leave is needed to correct a substantial injustice caused by some error;[5] or

   (d)there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.[6]

   [3]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

   [4]Cachia v Grech [2009] NSWCA 232, 2.

   [5]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

   [6]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580.

2. It has been said that:

   (a)The appeal process is not an opportunity for applicants to have their case automatically reheard;[7] the applicants must state the reasons for the application.[8]

   (b)An appeal tribunal should generally not interfere with the findings of fact made in a first instance decision,[9] except where those findings of fact are demonstrated to be wrong by incontrovertible facts, or if they are contrary to compelling inferences.[10]

   (c)There is no error of law simply in making a wrong finding of fact unless there is no evidence to support that finding.[11]

   (d)Without an error by the tribunal, it cannot be said that a substantial injustice has occurred.[12]

   [7]Hempel v Richardson & Wrench Hervey Bay [2018] QCATA 170 [14].

   [8]QCAT Act, s143(2)(b).

   [9]Dearman v Dearman (1908) 7 CLR 549, 561.

   [10]Fox v Percy (2003) 214 CLR 118, 128.

   [11]Australian Broadcasting Commission v Bond (1990) 170 CLR 321 [341].

   [12]Greg Ritchie v Harcourts Broadbeach/Mermaid Waters [2024] QCATA 15.

3. The applicant’s grounds for leave to appeal are simply: “wish to appeal the decision made that the tenants were not responsible for damage to the lawn”.[13]

   [13]Application for leave to appeal or appeal filed 6 December 2022.

4. The applicant resubmitted its evidence of damage, including entry and exit condition reports and repair invoices, but does not raise or identify either errors of fact or law regarding the learned Adjudicator’s decision, and there are none apparent on the face of the file.

Decision

1. As the applicants have not demonstrated a reasonably arguable case that the Tribunal below was in error, nor is there a substantial injustice in need of correction, leave to appeal should be refused.