McMallan v Alexandre
[2011] QCATA 147
•20 June 2011
| CITATION: | McMallan v Alexandre [2011] QCATA 147 |
| PARTIES: | Mr George McMallan |
| v | |
| Ms Marie Alexandre |
| APPLICATION NUMBER: | APL358-10 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 20 June 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal refused. |
| CATCHWORDS: | Minor Civil Dispute – where application reopened – effect of reopening – whether Tribunal considered arrears of rent in error – where applicant seeks to disturb findings of fact Queensland Civil and Administrative Tribunal Act 2009, ss 140, 142(3) Fox v Percy (2003) ACA 202 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Mr McMallan was a tenant in a residential property managed by the respondent at 31 Drive Helensvale. The rental bond paid was $2,960.00. The weekly rent was $800.00 per week. Mr McMallan moved out of the premises on 11 June 2010.
At the time he moved out, it was not contested, there was $3,556.80 in arrears of rent and the cost of cleaning the carpet was $155.00. The lessor’s agent contended at the hearing that Mr McMallan had a liability of $3,711.80. It is necessary to have regard to the history of the application.
On 9 August 2010 Mr McMallan filed an application for a minor civil dispute/residential tenancy in the Tribunal, namely for compensation for garden expenses, pool repairs and chemicals. The claim, as originally filed, was for $1,030.00, however by the time application came on for hearing, the claim seems to have increased to $2,700.00.
The initial hearing took place on 13 September 2010 after which the Tribunal member presiding ordered that the bond be distributed to the parties with $2,722.00 being paid to Mr McMallan.
Unfortunately, the respondent was not aware of the hearing date as the notice of hearing was sent to the incorrect address. An application to reopen was made and was granted. The application came on for final hearing before a Tribunal adjudicator on 29 October 2010.
The effect of the decision to reopen is that the Tribunal must decide the issues in the proceeding again by way of a fresh hearing on the merits.[1] That means, that any previous decision made by the Tribunal is of no force or effect and is to be ignored. That is the way the learned adjudicator approached the rehearing on 29 October 2010, as she was obliged to do.
[1] QCAT Act, section 140.
At the hearing on 29 October 2010 Mr McMallan presented his case for compensation accompanied with documentary evidence and photographs and of course his own testimony. As Ms Alexandre appeared for the lessor, it was made clear at the very beginning of the hearing that there was an issue about outstanding rent which I might say, was not challenged in any meaningful way by Mr McMallan. In fact, he made it clear to the Tribunal that he was not disputing the rent[2] and the hearing focussed on Mr McMallan’s claim for compensation.
[2] A transcript p30L6.
At the conclusion of the hearing, the decision was reserved and the learned adjudicator gave reasons for her decision on 29 October 2010. The decision was that Mr McMallan pay to the respondent $2,383.80. To arrive at that figure, she allowed $1,000.00 for maintenance and gardening, and $90.00 to reimburse Mr McMallan for the cost associated with repair of the pool cleaning system. That sum, deducted from the rent and cleaning charge of $3,711.80 left the balance owing by Mr McMallan of the sum awarded.
From that decision, Mr McMallan filed an application for leave to appeal or appeal on 16 December 2010. The grounds of appeal relied upon are relevantly, that the learned adjudicator failed to address issues of compensation and loss of amenity arising from the respondent’s breach of the Residential Tenancy Agreement, and the Residential Tenancy and Rooming Accommodation Act and, it seems, a failure to find that the Respondent gave false evidence in respect of the pool fence extensions.
[10] The grounds in the application also take issue with the decision to reopen. As I have indicated, once that decision to reopen has been made, which can not be appealed against, that is the end of it and the application has to be heard afresh as was done.
[11] From that decision, Mr McMallan challenges the fact that the respondent sought to put in issue the arrears of rent. Clearly, on Mr McMallan’s own admission, the rent was due and payable in the sum claimed. It is highly desirable that all issues in dispute between the parties should be finalised in one proceeding because any further action beyond the hearing can be costly and unnecessarily burdensome on those parties[3]. In fact, had the bond not been distributed as a consequence of the earlier hearing, it would have been there available for the respondent to access to compensate for loss of rent. It is there, amongst other things, to protect a lessor from loss of rent and for compensation.
[3] Fox v Percy (2003) ACA 202 at 29.
[12] The learned adjudicator proceeded to deal with the outstanding rent, quite properly with the involvement of Mr McMallan in circumstances where no issue was taken during the hearing with that approach. The learned adjudicator did not, in adopting this course, fall into error.
[13] Mr McMallan contends that the learned adjudicator took the incorrect approach in making an assessment of compensation for the lessor’s failure to maintain the property including regular lawn mowing. She took the view in her reasons, that the proper and appropriate measure of loss was the cost that would be reasonably incurred to engage a gardener and offset that amount against the rent to be paid. To calculate the loss of amenity it was recognised that such a claim is difficult to quantify and that Mr McMallan had not provided any compelling evidence to particularise the nature of the amenity lost. Quite obviously the fact that the grounds of the rented property were not maintained would cause some annoyance and upset but to reduce this to a dollar amount was difficult. Doing the best she could in the circumstances she allowed an amount of $1,000.00 for maintenance which included this loss of amenity. It seems to me, having perused the transcript and the evidence in both the minor civil dispute file and in this application there is nothing untoward about this assessment on the evidence that was put before her.
[14] The final issue of complaint is the swimming pool fencing arrangements. It is acknowledged that the local authority had relaxed the lessor’s obligation to install a pool fence. Mr McMallan contends that that relaxation applied personally to the owner of the property and not to him. The contention goes on that it was the landlord’s responsibility to ensure that the pool was fenced, despite the fact that the property was on a canal with a large canal frontage and therefore contravened section 185 of the Residential Tenancy and Rooming Accommodation Act. Again the learned adjudicator had regard to, in her decision, the lack of any documentary evidence to support Mr McMillan’s contention. She states categorically, “the applicant has not satisfied the evidenciary burden in relation to his claim for loss of amenity in respect of the unfenced pool. I am satisfied however, he should be compensated for the maintenance of which he paid in respect of the pool cleaning system in the sum of $90.00.” She expressed concern that the issue of the pool fencing was not raised at a much earlier date in the tenancy in circumstances where the Mr McMallan was quite happy to take the property and sign the Residential Tenancy Agreement as it was without a fence.
[15] As this is an appeal from a minor civil dispute leave of the Appeal Tribunal is necessary. It is not an appeal as of right.[4] The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?[5] Is there a reasonable prospect that the applicant will obtain substantive relief?[6] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[7] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[8]
[4] QCAT Act, section 124(3).
[5] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[6] Cachia v Grech [2009] NSWCA 232 at [13].
[7] QUYD Pty Ltd v Marvass Pty Ltd (supra).
[8]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
[16] It is the Appeal Tribunal’s function, in determining whether leave should be granted to determine whether there has been an error in the primary decision. It is not the Appeal Tribunal’s task to decide where the truth lay as between the contrasting versions given by the parties or re-litigate the proceeding. That is the function of the primary decision maker whose decision will only be disturbed if an error can be identified or demonstrated.
[17] On careful perusal of the transcript and evidence put before the learned Adjudicator, and her reasons, I am not satisfied that the Applicant has identified any error on her part nor is any error demonstrated. In the circumstance leave to appeal is refused.
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