McDonald v Haywood t/a AH Realty
[2014] QCATA 352
•16 December 2014
| CITATION: | McDonald and Anor v Haywood t/a AH Realty [2014] QCATA 352 |
| PARTIES: | Mark McDonald Elisha McDonald (Appellants) |
| v | |
| Annemarie Haywood t/a AH Realty (Respondent) |
| APPLICATION NUMBER: | APL359-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Acting Deputy President Stilgoe OAM Member Paratz |
| DELIVERED ON: | 16 December 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for leave to appeal is refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – RESIDENTIAL TENANCIES – where the tenant alleges that the real estate agent misled the tribunal on the hearing – where no error of law or fact is shown by the tribunal Dearman v Dearman (1908) 7 CLR 549 at 561 |
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
Acting Deputy President Stilgoe OAM
In this matter the Appeal Tribunal consisted of Mr Paratz, QCAT Member and me. I have had the benefit of reading his reasons in draft. I agree with his reasons, and his conclusions, and the order he proposes.
Member Paratz
AH Realty brought an application for a Minor Civil Dispute in relation to a residential tenancy claim. The Lessor was seeking compensation from the tenants, Mark McDonald and Elisha McDonald, for the breaking of a lease. The learned Magistrate at Moranbah heard the matter by an oral hearing on 25 July 2014, and made the following orders:
I order the respondents to pay to the Applicants in full satisfaction of the claim the sum of $2,909.43.
In part satisfaction of my order I direct the RTA to pay out the bond of $1,640.00 held by it to the Applicant on behalf of the landlord.
I further order that the Respondent pay the balance of my order namely $1,269.43 within 28 days.
The McDonalds have appealed the decision on grounds which they say are mixed questions of law and fact. They submit that RTA informed them on 4 occasions that they were within their rights to break the lease due to an unremedied breach by the real estate agency to fix a broken hot water system. They also submit that all appropriate notices were given, and the real estate agency at the time avoided contact with them, and didn’t return their phone calls. Finally, they submit that the house was poorly maintained and managed, and that the real estate agency in question was under investigation by the Office of Fair Trading due to related incidences such as theirs.
Because this is an appeal from a decision of the tribunal in its minor civil dispute jurisdiction, leave is necessary. Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?
The McDonalds do not identify any error of fact or law made by the learned Magistrate. The basis of their appeal appears to be that they disagree with the evidence of Ms Haywood.
Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[1]
[1]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
Evidence was given at the hearing of the application by Mr McDonald, Ms McDonald, and Ms Haywood. In their submissions filed on 26 September 2014, the McDonalds canvass the whole of the dealings between the parties. They submit that Ms Haywood misled the Tribunal. The specific matters they seem to be alleging as to which the Tribunal was misled appear to be:
a) The day and date that the McDonalds moved into the property.
b) That a second opinion was sought from Ron Payne Electrical as to the stove.
c) That the McDonalds were badmouthing the real estate agency to her employees and servicemen.
d) That the McDonalds were racist as to the aboriginal neighbours.
e) That no maintenance request was received prior to 25 February 2014.
The McDonalds submitted that:[2]
In any circumstance we as tenants are not responsible to fix or financial compensate a broken or faulty loss of an amenity. AH Realty did not see this as an emergency nor did they try to get it fixed in a timely fashion, communicate with us their difficulties or offer us compensation or lowered rent because of this. We found ourselves with no choice but to move on and break the lease, which was very difficult with 4 kids while expecting a baby and financially struggling.
[2]McDonald submissions filed 26 September 2014 p 4-5.
In her submissions,[3] Ms Haywood responded by saying that:
None of the reasons given by the McDonalds are relevant to the fact that they were breaking a lease agreement signed 01/09/2013. Our office, AH Realty, responded immediately to requests for maintenance to be carried out on the solar hot water system which was not functioning correctly. At no stage were these tenants in an emergency situation without hot water. The owner of the property gave us instructions to request several quotes from different companies to carry out these repairs. Repairs were carried out within 4 weeks of the notice being given to our office of the maintenance required. We have previously explained these circumstances to the court, and Mark and Elisha McDonald.
[3]Haywood submissions filed 27 October 2014 p 1.
The issues as to the hot water system, and the breaking of the lease, were the subject of evidence at the hearing and were considered by the Learned Magistrate who concluded:[4]
Now, as I said, whether the change in the hot water system is, of itself, justification for the termination of the lease or whether it sounded only in compensation by a reduction of rent is something that, ultimately, has been overtaken by the fact that the McDonalds have decided to vacate without putting the matter before the – this tribunal, even though it seems that they received such advice that the matter, perhaps, should be put before the tribunal. So, ultimately, it seems to me that, as I said, the change in the hot water system does justify some compensation but it seems to me that the landlord needs to be compensated for the break of the lease.
[4]Transcript p 1-17, lines 12 – 20.
Ms Haywood gave evidence at the hearing, and was available for cross-examination. The learned Magistrate was able to hear the evidence and form a view as to the credibility of the witnesses.
An appellate tribunal may interfere if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.[5] As the High Court said in Fox v Percy:
In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.[6]
[5]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[6]Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
There is nothing in the transcript that persuades me that the learned Magistrate should have taken a different view of the facts.
The matters that the McDonalds raise as instances where the Tribunal was “misled” by Ms Haywood are either not directly relevant to the central question of the breaking of the lease, or were the subject of evidence at the hearing. There is no element in the matters where Ms Haywood is said to have misled the Tribunal which would have the effect of bringing the findings of the learned Magistrate into question.
There is no question of general importance that should be determined by the Appeals Tribunal; there is no reasonably arguable case that the learned Magistrate was in error; there is no reasonable prospect of substantive relief on appeal; and there is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.
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