Mazi v Alex Brookes Pty Ltd t/as L J Hooker Chermside

CITATION:	Mazi v Alex Brookes Pty Ltd t/as L J Hooker Chermside [2018] QCATA 51
PARTIES:	Grace Mazi (Appellant)
v
Alex Brookes Pty Ltd t/as L J Hooker Chermside (Respondent)
APPLICATION NUMBER:	APL184-17
MATTER TYPE:	Appeals
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Member Gordon
DELIVERED ON:	23 April 2018
DELIVERED AT:	Brisbane
ORDERS MADE:	1. The appellant’s application to rely on fresh evidence is refused. 2. Leave to appeal is refused. The appeal therefore fails.
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN NO APPEAL LIES – leave to appeal – where minor civil dispute heard by Adjudicator – whether any reasonably arguable grounds of appeal Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
APPEARANCES:

This appeal was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

This is an appeal by a tenant, Grace Mazi, from a decision of an Adjudicator in a residential tenancy matter. The Adjudicator ordered the tenant to pay to L J Hooker Chermside, who were acting on behalf of the owner, the sum of $1,372.50 made up of $1,260 compensation and $112.50 filing fee. At the same hearing, the Adjudicator dismissed the tenant’s counter application.
L J Hooker’s application against the tenant sought an amount of outstanding rent and the cost of reletting the premises, on the basis that the tenant had left the premises before the expiry of the fixed term of the tenancy agreement. The tenancy agreement was due to expire on 2 November 2017 but the tenant left on 18 January 2017 having served a Form 13 ‘notice of intention to leave’ relying on an unremedied breach.
The alleged unremedied breach had been the subject of an earlier Form 11 ‘notice to remedy breach’ served by the tenant which alleged that the owner was failing to keep the common areas clean (landing and staircase) and ‘oven repair’. L J Hooker’s position was that the Form 11 was defective because it had not given the requisite seven days’ notice to remedy. But in any case, the oven had been repaired within the time requested in the Form 11, and that the common areas were reasonably clean, so that there was no justification for the tenant to serve the Form 13 and vacate the property.
The tenant filed a counter application in which she maintained that the Form 11 was valid, that the breach described in the form had not been remedied, and in which she sought compensation for breach of the tenancy agreement and a rent reduction over the time of the breach. Prior to the hearing, the tenant amended the counter application and adjusted the amount claimed to $4,085.99.
L J Hooker and the tenant attended the hearing. The Appeal Tribunal has a transcript of the hearing which is on the file. For copyright and cost reasons it is not given to the parties. The Adjudicator heard from both sides about the issues. She then gave her decision and the reasons for the decision.
At the hearing, the question whether there was a body corporate for the building was discussed. The tenant said there was no body corporate, but the property manager said that there was.[1] This was raised again at various times through the hearing.
[1]Transcript 1-2 line 43 to 1-3 line 21.
The oven repair was discussed.[2] The tenant referred the Adjudicator to her documents. There was a discussion about the meaning of the entry in an electrician’s invoice where the electrician seemed to have noted that the oven and its timer tested OK. The tenant disputed that this was what the note said. The Adjudicator read out the relevant passage: ‘Tenant showed oven timer was not working correctly. Part is in stock. Tested okay’. The Adjudicator pointed out to the tenant that the same type of wording had been used by the electrician when testing the phone port and new phone point and TV point after repair. They all ‘tested okay’. Also that when the electrician returned on 21 December 2016 there was no mention of the oven timer at all which tended to suggest it had indeed been fixed. The tenant was given an opportunity to comment on the things which the Adjudicator stated was likely to influence her in her decision about whether the oven had been repaired. The tenant referred the Adjudicator to the exit report in which she had stated the oven repair was not complete, and which she said the property manager had not commented on.[3] The property manager said however, that the oven was working and no further repair had been needed for the new tenants when they came into the premises.[4]
[2]Transcript 1-3 line 23 to 1-5 line 33, 1-21 line 5 to 1-22 line 2.
[3]Transcript 1-15 line 18 to 1-6 line 7.
[4]Transcript 1-16 line 7.
The cleaning of the common parts was discussed.[5] The property manager said that although the owner arranged for regular cleaning, they organised special cleaning because of the tenant’s concerns although this was not done until after the tenant had left. The tenant produced photographs showing the state of the common parts at the commencement of the tenancy. The Adjudicator expressed the view that the photographs showed only minor cleaning issues and gave the tenant an opportunity to comment on this.
[5]Transcript 1-5 line 40 to 1-7 line 28, 1-10 line 30 to 45, 1-16 line 31 to 1-18 line 20, 1-24 lines 16 to 35.
The Adjudicator gave her decision and reasons for it in two parts.[6]
[6]Transcript 1-26 to 1-27 and 1-44 to 1-48.
With respect to the oven, she found that the electrician had attended the premises on 29 November 2016 and tested the oven finding it to be in working order. She noted that the tenant had demonstrated that the oven timer was not working correctly, that the part was in stock and then the electrician had written ‘tested ok’. So, the Adjudicator found that the electrician had either repaired the timer or that the timer was working as it should be. The Adjudicator referred to the email of 15 December 2016 in which L J Hooker said they were sending the electrician round again, and she found that the electrician attended the premises again on 21 December 2016 and made some repairs – but did not refer to the timer on this occasion. The Adjudicator found that the lessor had done everything possible to fix the oven and that it was working at least by the remedy date in the Form 11.[7]
[7]Transcript 1-26 line 43, 1-44 line 35, 1-47 line 29.
With respect to the cleaning of the common areas, the Adjudicator accepted evidence that the body corporate had informed the property manager that regular cleaning did occur and found that this did indeed happen.[8] Although there was some small amounts of rubbish in the tenant’s photographs of the common areas, this was not a very serious matter and did not justify terminating the tenancy.[9] She found that the special cleaning organised by the property manager was done after the expiry of the period to remedy in the Form 11.[10]
[8]Transcript 1-27 line 11.
[9]Transcript 1-27 line 13.
[10]Transcript 1-47 line 36.
The Adjudicator found the Form 11 to be defective because it only gave six days’ notice to remedy instead of the required seven days. In any case, however, on the ground that the lessor had not been in breach of the tenancy agreement or that the lessor had remedied any breach within the time given, the Adjudicator found that the tenant had not been entitled to give the Form 13 on the grounds stated (failure to remedy breach).[11]
[11]Transcript 1-27 line 19.
The Adjudicator then considered the question of compensation for the break lease which the tenant was going to have to pay, the quantum of which is not the subject of this appeal.
On the counter application, the Adjudicator explained that the claim for reduction of rent failed because the oven defect and the cleaning issue did not amount to a ‘significant or substantial reduction in amenity of the premises which would justify a rent reduction’. This was a reference to the test in section 94(2)(a) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) which provides that to achieve a rent reduction there has to be a substantial decrease in the amenity or standard of the premises. The Adjudicator found that the oven disrepair and the cleaning issue were only minor inconveniences. This was also the reason why there was no breach of the agreement entitling the tenant to compensation.[12]
[12]Transcript 1-47 line 38 to 1-48 line 1.
The Adjudicator also made other findings on the counter application also not subject of this appeal.

Grounds of appeal

In her grounds of appeal the tenant says that the Adjudicator was wrong to find that the oven had been repaired, because the electrician’s report showed that the timer on the oven had not been repaired. It is said that on this issue the Adjudicator allowed L J Hooker to present unfiled evidence (contrary to the tribunal’s directions of 21 April 2017), and that the Adjudicator ignored the exit condition report.
On this issue, the tenant seeks to present new evidence which was not before the Adjudicator. The new evidence appears to be an email from an administration assistant of the electricians who provided the invoice considered by the Adjudicator. The email is dated 1.26pm on 19 May 2017, which is just after the hearing. It says that a statement on an invoice saying ‘tested OK’ is only a reference to safety and that the quote to replace the timer on the invoice demonstrates that the timer was not working correctly.
With respect to the cleaning issue the grounds of appeal say that the Adjudicator made a finding of fact where there was no evidence to support that finding. It is said that the Adjudicator should not have accepted the agent’s evidence that cleaning was regular and instead should have accepted other written evidence to the contrary, and that the Adjudicator should not have allowed evidence to given ‘online’ which had not previously been submitted.
It is also said that the Adjudicator was incorrect to believe that the cleaning of common areas was the responsibility of the body corporate because there was no body corporate. References are made to what was stated in the dispute resolution conference on this matter.
With respect to the finding that the tenant had broken the lease, the grounds of appeal say that this finding was wrong, again referring to what was said in the dispute resolution conference.
L J Hooker made submissions in reply seeking to deal with the points made by the tenant in the appeal.

Dealing with the grounds of appeal

In so far as the tenant seeks to rely on anything said in the dispute resolution conference, all discussions of that type are ‘without prejudice’ and the Appeal Tribunal is unable to hear about them.
In so far as the tenant seeks to rely on any fresh evidence which was not before the Adjudicator, as directed by the Appeal Tribunal this requires leave.[13] Leave to rely on fresh evidence on appeal in accordance with established principles is only given for evidence which could not have been obtained for the original hearing if a reasonable effort had been made to obtain that evidence.[14] It is clear that the comments from the administration assistant of the electricians could have been obtained before, rather than after, the hearing. Accordingly, the application to rely on fresh evidence must fail.
[13]Directions of 15 June 2017.
[14]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408.
With respect to the oven repair, the Adjudicator found that the repair had been done and this was certainly open to her on the evidence bearing in mind the electrician’s note. The tenant disagrees with the Adjudicator’s conclusion about this but the tenant was given all opportunity to present her arguments about this at the hearing and did do so. It was for the Adjudicator to resolve the conflict of evidence and this is what she did. The ground of appeal that the Adjudicator should not have accepted unfiled evidence seems to be a similar point. As for the ground that the Adjudicator should have given more weight to the exit condition report, this was completed by the tenant on her departure. Its probative value is limited to the fact that it is not inconsistent with her case on the oven. It rightly did not persuade the Adjudicator that the tenant was correct in her contentions.
The grounds of appeal with respect to the cleaning issue are very similar. The Adjudicator had to decide between the tenant’s evidence that the common areas were unclean, supported by the photographs, and the property manager’s evidence that the common areas were cleaned regularly.[15] The Adjudicator decided that the photographs did not show a significant problem. This finding was certainly open to her.
[15]Transcript 1-22 line 25, 1-24 line 40.
With respect to the ground of appeal about accepting evidence online which had not previously been submitted, this may be a reference to the invoice for the special cleaning organised by the property manager. The Adjudicator asked the property manager for this and a printed version was not available so the property manager emailed it to the Hearing Support Officer.[16] Since the invoice showed that this cleaning was actually done after the tenant had left the premises, it was irrelevant and did not affect the Adjudicator’s decision.
[16]Transcript 1-17 line 15, 1-22 line 4.
Appeals in minor civil disputes can only be brought with the leave of the Appeal Tribunal. Such leave will only be given if there is an arguable case on appeal. Such appeals are only arguable if the decision maker is in error in law, or has made a factual finding which could not be made on the evidence. This is not the case here. Leave to appeal is refused and the appeal therefore fails.

[2018] QCATA 51

23 April 2018