McClelland v Ofner

[2019] QCATA 49

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

McClelland v Ofner [2019] QCATA 49

PARTIES:

ROBERT JAMES MCCLELLAND
(appellant)

v

MARIA NIEVES OFNER

(respondent)

APPLICATION NO/S:

APL188-18

ORIGINATING APPLICATION NO:

Claim MCDT555-18 (Southport)

MATTER TYPE:

Appeals

DELIVERED ON:

23 April 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

Leave to appeal against the decision made on
25 July 2018 in Claim MCDT555-18 Southport is refused.  The appeal therefore fails.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN NO APPEAL LIES – leave to appeal – where it is said the Justices of the Peace misapplied provisions of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) – where it is said they should have found differently as to the contractual agreement – whether any reasonably arguable grounds of appeal

REPRESENTATION:

Appellants:

Self-represented

Respondents:

Self-represented

APPEARANCES:

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

1. In an application before the tribunal concerning financial matters after the end of a residential tenancy, Justices of the Peace sitting as a tribunal panel decided on 25 July 2018 that the rental bond of $1,000 should be paid in full to the tenant Maria Nieves Ofner.  The panel also decided that the lessor Robert James McClelland, should reimburse Ms Ofner the sum of $250 overpaid for electricity.

2. The lessor now appeals against that decision.

3. The Appeal Tribunal has obtained a transcript of the hearing of the matter.  This shows that the panel heard from both parties and read the documents they presented.  The lessor was claiming that there were rental arrears and unpaid electricity charges.  The tenant denied any rental arrears and said that she had overpaid on electricity.

4. One of the matters which the panel had to resolve in order to decide the issues between the parties was exactly what was agreed between them.  Normally this would appear clearly from the written residential tenancy agreement.  But in this case there was more than one version of the agreement and the provisions for rent had been overwritten after being signed.  The tenant denied agreeing to any variations in the residential tenancy agreement she originally signed.

5. The panel concluded that the residential tenancy agreements presented to the tribunal in their altered forms could not be relied on as showing what had been agreed about rent.[1]  The tenant was not in arrears under the original terms.  In the circumstances, the claim for rent arrears failed.  With respect to the issues about electricity, the panel found that the residential tenancy agreement showed that there was no charge for electricity.[2]  On that basis, a sum of $250 which had been paid for electricity should be repaid.

   [1]Transcript page 1-30, line 43.

   [2]Transcript page 1-31, lines 9-18.

6. In this appeal there are two grounds:-

   (a)Ground 1. The panel made an error of law by misapplying sections 173 and 174 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) as demonstrated by a legal opinion on the effect of those sections on the claim.

   (b)Ground 2. Contrary to the panel’s findings, the tenant was obliged to pay for electricity as evidenced by the last page of the residential tenancy agreement and by the tenant’s acceptance that she was responsible to pay for electricity.

7. As for ground 1, sections 173 and 174 deal with penalty provisions in a residential tenancy agreement upon a tenant’s breach. Such provisions are void. Although there was some discussion about the effect of these sections during the hearing,[3] as it turned out, they were not pertinent to the panel’s decision.  This because the decision which was reached was based on the contractual agreement about the rent.  This decision was consistent with the law of contract and the sections referred to did not affect it at all.  There is no merit in this ground of appeal.

   [3]Transcript page 1-14, line 8 to page 1-14 line 25.

8. As for ground 2, the last page of the residential tenancy agreement is a reference to a signed handwritten note containing some words and figures written on the last page of the agreement during the currency of the tenancy.  This was shown to the panel at the hearing,[4] but the panel’s conclusion on the evidence was that it did not form any part of the agreement between the parties.[5]  As explained during the hearing and also when giving reasons, more would be required to vary clear terms of a residential tenancy agreement showing that there was no charge for electricity.[6]  On the evidence this finding was clearly open to the panel.  As for the point about the tenant’s acknowledgement, the allegation that a third party offered to pay for some electricity was raised at the hearing.[7]  In submissions in this appeal, the tenant denies acknowledging that any electricity was payable.[8]  It is difficult to see how any such acknowledgement even if made, could affect the contractual rights and obligations of the parties.  There is no merit in this ground of appeal.

   [4]Transcript page 1-12, line 1.

   [5]Transcript page 1-31, line 2.

   [6]Transcript page 1-13, line 19; page 1-20, line 13; page 1-31, line 7.

   [7]Transcript page 1-23, line 29.

   [8]Submissions of tenant, paragraph 3.32.

9. 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 and is of such importance as to require leave to be given.  This is not the case here.  Leave to appeal is refused and the appeal therefore fails.