Marker v Scarbie Investments Pty Ltd
[2014] QCATA 251
•29 August 2014
| CITATION: | Marker & Anor v Scarbie Investments Pty Ltd & Anor [2014] QCATA 251 |
| PARTIES: | Darren Marker and Sally Rose (Appellants) |
| v | |
| Scarbie Investments Pty Ltd and Redcliffe Homes Pty Ltd (trading as Realway Property Consultants Redcliffe) (Respondents) |
| APPLICATION NUMBER: | APL251-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 29 August 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal is granted, limited to the amount of compensation payable by the respondents to the appellants. 2. The appeal is granted, but only to the extent that the amount of $955.85 awarded for compensation is deleted, and in lieu thereof, the amount of $1,153.85 is substituted. 3. Consequentially, the total amount payable by the respondents to the appellants, including filing fee, is $1,437.85. 4. The orders made on 28 February 2014 are otherwise confirmed. |
| CATCHWORDS: | APPEALS – LEAVE TO APPEAL – RESIDENTIAL TENANCY – where compensation and reduction of rent claimed for landlord’s breach of lease – where breach consisted of infestation by mould – whether evidence not disclosed pre-trial should be considered – whether photographic and other evidence adduced by appellants duly considered – whether award of compensation appropriate – whether minor adjustment of award should be made – where leave to appeal and appeal allowed on strictly limited basis Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 32, s 142 Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69 In re W (an infant) [1971] AC 682 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 Robinson v Corr [2011] QCATA 302 |
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 (Qld) (QCAT Act).
REASONS FOR DECISION
This is an application for leave to appeal from the decision of an Adjudicator in a minor civil dispute.[1] At all material times the appellants Marker and Rose (“the tenants”) resided in premises at Kallangur, Queensland. The first respondent (“Scarbie”) was owner of those premises, and the second respondent (“Realway”) was Scarbie’s property manager, authorised to sue and defend on its behalf.[2]
[1]Leave is required by QCAT Act, s 142(3)(a)(i).
[2]General Tenancy Agreement dated 7 June 2013, Clause 43.
On 10 December 2013 the tenants commenced these proceedings claiming:
-$2,300 by way of rent reduction;
-$19,700 by way of compensation for personal belongings;
-$2,084 for removal costs and filing fee; and
-“reimbursement costs” of $890.19.
The case was heard on 28 February 2014, when it was ordered that: Scarbie Investments Pty Ltd pay to Darren Marker and Sally Rose the sum of $955.85 compensation plus $284 filing fee by 14 March 2014.
The tenants now seek leave to appeal[3] on these grounds:
(i)The Tribunal failed to have any, or any sufficient regard to the mould inspection reports provided by The Mould Men and X Steam Clean.
(ii)The Tribunal failed to have any, or any sufficient regard to the evidence of the damage to the [tenants’] property and to the aforementioned experts’ reports confirming the need for such property to be destroyed.
(iii)The Tribunal failed to have sufficient regard to photographic evidence submitted by the [tenants].
(iv)The Tribunal erred in determining the amount of compensation without having regard to replacement costs of [the tenants’] furniture.
(v)The Tribunal erred in its discretion to award only one half of rent reduction claimed.
(vi)The Tribunal failed to have any, or any sufficient regard to loss of suffered [sic] by [the tenants] as to damage to property caused by mould.
(vii)The Tribunal failed to have any or any sufficient regard to loss suffered [sic] to mould by Mould Pro, The Mould Men and X Steam.
[3]As required by s 142(3)(a)(i) of the QCAT Act.
I now consider these submissions seriatim.
Ground (i)
The Adjudicator’s reasons for his decision occupy almost four closely-typed pages of a transcript of 34 pages. He noted, correctly, that the tenants had not filed and served copies of their expert reports with the initial application, contrary to the QCAT “guide to completing Form 2”.[4] The respondents, although not users of Form 2, also failed to make pre-trial disclosure of their expert evidence.
[4]Form 2 is the prescribed form for commencing a minor civil dispute – residential tenancy dispute.
The Adjudicator might well have ruled the tenants’ reports inadmissible. However, he decided to take them into account, only to find that the they “essentially cancel each other out”.[5] In other words, the expert evidence was diametrically opposed, and, in the absence of those witnesses, the Tribunal was “denied the opportunity to explore the contents of the reports with [their authors]” and “to consider [their] credibility” [6]. The tenants, after all, bore the onus of proof. Nevertheless, in the light of the “surrounding evidence” the Tribunal found, in their favour that “there was still mould in the premises” and that a rent reduction was warranted, subject to reduction for failure to mitigate.[7]
[5]Transcript of hearing (Transcript) 28 February 2014 page 31 line 17.
[6]Transcript page 31 lines 29-32.
[7]Ie. a failure to give the landlord formal notice of damage: Residential Tenancies and Rooming Accommodation Act 2008 (“the RTRA Act”) s 217.
There is no substance in the tenants’ claim that the learned Adjudicator “failed to have any, or any insufficient regard to the mould inspection reports provided by The Mould Men and X Steam Clean”. On the contrary, he exercised his discretion in their favour. This is not a viable ground of appeal.
Ground (ii)
This ground relates to the tenants’ claim for loss of property damaged by mould. As the Adjudicator pointed out, it was incumbent upon them not only to prove causation, but also quantum – that is, the value of the property lost.[8] Subject to a minor exception, no documentary or other evidence was adduced on the quantum issue. (The exception is a receipt for $198 paid to Dial a Bed Australia Pty Ltd for replacement of children’s mattresses destroyed by mould.[9])
[8]Transcript page 10 lines 19-22.
[9]Ibid page 12 lines 1-12.
In the general absence of acceptable evidence of quantum the Adjudicator, as judge of fact, was entitled to disallow all but $198 of the $19,700 claim for loss of property. The latter amount, as the Adjudicator remarked, was too large a sum to be awarded on the basis of an unsworn assertion in the tenant’s statement of claim.[10] The Adjudicator referred appropriately to the dicta of President Alan Wilson and Member Gardiner in Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd[11], warning litigants of their duty to act in their own best interests.
[10]Ibid page 9 line 25,
[11][2010] QCATA 69 at [12].
However, the Adjudicator clearly indicated that documented claims for mould damage would have been allowed, and he found that damaging mould persisted at material times. The receipt for $198 was unchallenged, and if it had not ultimately been overlooked, would presumably have been admitted in evidence, as was other and more important material not disclosed before trial. It is, therefore, reasonable to suppose, that if it were not for momentary inadvertence, the tenants’ claim for $198 would have been allowed. In the interests of economy and expedition,[12] an appropriate adjustment should now be made.
[12]QCAT Act, ss 3 – 4.
Generally, however, the complaint that insufficient attention to evidence of property damage is unwarranted. With one minor exception, there was, as the Adjudicator found, no acceptable evidence of quantum. The same objection applies to the claims for removal and “miscellaneous costs”.[13]
[13]Ibid page 30 lines 17-18, 19.
The minor exception mentioned in paragraph [11], above, is reflected in orders following.
Ground (iii)
The tenants’ photographic evidence goes to the issue of presence or absence of mould. It was noted by the Adjudicator in the course of evidence,[14] and is, no doubt, part of the “surrounding evidence”[15] relied on by him in allowing the tenants’ claim for reduction of rent.
[14]Ibid page 15 lines 37-39.
[15]Ibid page 31 line 40.
Ground (iii) discloses no appellable error.
Ground (iv)
The answer to this submission is anticipated in consideration of Ground (ii), above.
Ground (v)
The order regarding reduction of rent incorporated a finding based on uncontroverted evidence of non-compliance with section 217 of the RTRA Act. Inevitably, an exercise of the discretion to order a reduction of rent[16] is incapable of “mathematical calculation or determination by application of a formula”.[17] There is nothing to indicate that the subject assessment is unreasonable.
[16]RTRA Act, s 94.
[17]Underwood v Department of Communities (State of Queensland) [2013] 1 Qd R 252; [2012] QCA 158 at [26].
Ground (v) discloses no appellable error.
Ground (vi)
The answer to this submission is anticipated in consideration of ground (ii), above.
Ground (vii)
The answer to this argument is anticipated in consideration of ground (ii) above.
Conclusion
An essential, and much misapprehended 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.[18] Certainly it is not nearly enough for an applicant to express disappointment, or to entertain a subjective feeling that justice has not been done.[19] 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.[20] Where reasonable minds may differ, a decision is not erroneous simply because one conclusion has been preferred to another possible view.[21]
[18]Snell v Morgan [2011] QCATA 316 at [10]; Thompson and Anor v Jedanhay Pty Ltd [2012[ QCATA 246 at [28].
[19]Robinson v Corr [2011] QCATA 302 at [7].
[20]Fox v Percy (2003) 214 CLR 118 at 125-126.
[21] 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.
Apart from the oversight of the claim for children’s bedding ($198), no appellable error appears. Accordingly, apart from a small adjustment of the amount awarded for compensation, leave to appeal will be refused.
ORDERS
1.Leave to appeal is granted, limited to the amount of compensation payable by the respondents to the appellants.
2.The appeal is granted, but only to the extent that the amount of $955.85 awarded for compensation is deleted, and in lieu thereof, the amount of $1,153.85 is substituted.
3.Consequentially, the total amount payable by the respondents to the appellants, including filing fee, is $1,437.85.
4.The orders made on 28 February 2014 are otherwise confirmed.
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