Mepham v Wenham - [2018] QCATA 188

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Mepham v Wenham & Anor [2018] QCATA 188

PARTIES:

DEREK JOHN AMOORE MEPHAM
(appellant)

v

DAVID WENHAM

(first respondent)

JUDITH WENHAM

(second respondent)

APPLICATION NO/S:

APL086-18

ORIGINATING APPLICATION NO/S:

MCDT176-18 (Southport)

MATTER TYPE:

Appeals

DELIVERED ON:

3 December 2018

HEARING DATE:

22 November 2018

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

Application for leave to appeal refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where tenant held over after fixed term of tenancy – where tenant sought recovery of entire bond – where lessors made a counter application for compensation – where no evidence led by tenant at hearing to challenge evidence presented by the lessors – where claims as to statements made by the tenant at hearing not supported by a perusal of the transcript of the proceedings – where Adjudicator awarded the lessors their costs of filing the counter application though the tenant recovered more than half his bond and the lessors recovered less than half of the monies claimed in their counter application

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 419

Alexandria v Thiele [2018] QCATA 174
Fox v Percy (2003) 214 CLR 118
Pickering v McArthur [2005] QCA 294

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

First Respondent:

Self-represented by R Latter

Second Respondent:

Self-represented by R Latter

REASONS FOR DECISION

Mr Mepham was the tenant of a unit on Ferny Avenue, Surfers Paradise under a fixed term residential tenancy agreement which ended on 5 December 2017. He stayed more than another week because he was delayed taking up residence at new premises.
After he vacated, the lessors’ agent claimed the bond to cover various items of compensation and rent said to be owing. Mr Mepham filed an application in the Tribunal seeking recovery of his full bond. The lessors filed a counter application seeking payment of $1,970.71 and the claims were heard before an Adjudicator on

23 March 2018.
The learned Adjudicator ordered Mr Mepham pay the lessors $550 for wall repairs and $165 for door repairs and pay the lessors’ filing fee for their counter application in the amount of $116.40. Those sums were ordered to be paid out of the bond held by the Residential Tenancies Authority. The balance was ordered to be returned to Mr Mepham.
Mr Mepham is unhappy with that decision. He has filed an application for leave to appeal or appeal.
Given this is an appeal from a decision made in the Tribunal’s Minor Civil Dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.[1]
[1]QCAT Act, s 142(3)(a)(i).
Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.[2]
[2]Pickering v McArthur [2005] QCA 294, [3].
The grounds upon which Mr Mepham appeals are far…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mepham v Wenham

Details

AGLC: Mepham v Wenham [2018] QCATA 188
Case: [2018] QCATA 188
Decision Date: 3 December 2018

CaseChat Overview and Summary

The appeal before the court involves Mepham, the appellant, and Wenham, the respondent. The dispute originated from a case where the appellant held over as a tenant following the expiration of a fixed term tenancy. The appellant sought recovery of the entire bond, while the respondent sought compensation. The matter was heard by an Adjudicator, who awarded the respondent their costs for filing the counter application despite the appellant recovering more than half of their bond, and the respondent recovering less than half of the amount claimed in their counter application. The appellant sought leave to appeal the decision, which the respondent opposed. The primary legal issues before the court were whether the appellant had the right to appeal and whether the Adjudicator had made an error of law in awarding costs to the respondent.
The court found that the appellant did not have the right to appeal the decision, as the appeal was not based on an error of law. The court held that the Adjudicator had not made an error of law in awarding costs to the respondent. The court noted that the appellant had not led any evidence at the hearing to challenge the evidence presented by the respondent, and that the claims as to statements made by the appellant at the hearing were not supported by a perusal of the transcript of the proceedings. The court found that the Adjudicator had exercised their discretion correctly in awarding costs to the respondent.
The court dismissed the appellant's application for leave to appeal. The court held that the Adjudicator had not made an error of law in awarding costs to the respondent, and that the appellant did not have the right to appeal the decision. The court found that the appellant had not demonstrated that the Adjudicator's decision was palpably wrong or unjust, and that the appeal was not based on an error of law. The court therefore refused the appellant's application for leave to appeal.

Orders

Orders of the court

Application for leave to appeal refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Mepham v Wenham & Anor [2018] QCATA 188
PARTIES:	DEREK JOHN AMOORE MEPHAM (appellant)
v
DAVID WENHAM (first respondent) JUDITH WENHAM (second respondent)
APPLICATION NO/S:	APL086-18
ORIGINATING APPLICATION NO/S:	MCDT176-18 (Southport)
MATTER TYPE:	Appeals
DELIVERED ON:	3 December 2018
HEARING DATE:	22 November 2018
HEARD AT:	Brisbane
DECISION OF:	Member Howe
ORDERS:	Application for leave to appeal refused.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where tenant held over after fixed term of tenancy – where tenant sought recovery of entire bond – where lessors made a counter application for compensation – where no evidence led by tenant at hearing to challenge evidence presented by the lessors – where claims as to statements made by the tenant at hearing not supported by a perusal of the transcript of the proceedings – where Adjudicator awarded the lessors their costs of filing the counter application though the tenant recovered more than half his bond and the lessors recovered less than half of the monies claimed in their counter application Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 419 Alexandria v Thiele [2018] QCATA 174 Fox v Percy (2003) 214 CLR 118 Pickering v McArthur [2005] QCA 294
APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
First Respondent:	Self-represented by R Latter
Second Respondent:	Self-represented by R Latter