Michel v Belle Property Buderim
[2012] QCATA 157
•31 August 2012
| CITATION: | Michel and Anor v Belle Property Buderim [2012] QCATA 157 |
| PARTIES: | Xavier Michel Yolen Michel (Applicants/Appellants) |
| v | |
| Belle Property Buderim (Respondent) |
| APPLICATION NUMBER: | APL054-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 31 August 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Application for leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – TENANCY – Urine smell in property – Tenants failed to leave and sought compensation – Magistrate ordered reduced compensation to tenants for loss of amenity because tenants failed to mitigate loss – whether tenants disadvantaged by language skills – whether Magistrate was biased – no error – leave refused Queensland Civil and Administrative Tribunal Act 2009, ss 13, 32 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
In November 2011 Mr and Mrs Michel agreed with Belle Property Buderim (the owner’s agent) to rent residential premises on the Sunshine Coast for one year, at a rent of $500.00 per week and with a rental bond of $2,000.00.
Immediately after occupying the premises they complained to Belle Property about a strong smell of urine and within a week of the tenancy commencing all parties signed an agreement under which Mr and Mrs Michel agreed to leave the premises after 25 November 2011; two weeks rent would be refunded to them; they would also be paid compensation of $1,000.00; and, their rental bond would be refunded if they left the property in the same condition as it was at the time of occupation.
A short time after this, however, Mr and Mrs Michel apparently decided not to leave and did not perform their obligations under this agreement.
Instead, in early December 2011 they brought proceedings in QCATs minor civil disputes jurisdiction seeking compensation in the form of a 95% reduction in the rent from 10 November 2011 until “the matter” (apparently, the problem with smell of dog urine) was rectified and, also, $1,500.00 for cleaning expenses and $2,500.00 for loss of amenity, “workspace” and income.
The matter came on for hearing before a Magistrate sitting as a QCAT Member at Nambour on 19 December 2011. After hearing evidence and receiving documents from both parties he ordered that the owner pay compensation to Mr and Mrs Michel of $1,500.00 “…for loss of amenities due to the urine smell”.
Mr and Mrs Michel subsequently sought leave to appeal that decision. By direction of the QCAT Appeal Tribunal they, and the agents, were ordered to exchange written submissions. The Michel submissions are voluminous – about 5 cm thick. The agent has also responded, in great detail. I have read that material and also listened to an audio recording of the proceedings before the learned Magistrate.
In their grounds of appeal Mr and Mrs Michel say that because his English is poor, and Mrs Michel cannot speak the language at all, they asked the registrar of the Court to provide an interpreter but this was refused. By inference, their allegation is that they did not receive a fair hearing or were disadvantaged through language difficulties. The audio recording shows Mr Michel has a good command of English and it is apparent that he understood everything that the Magistrate said to him and, himself, spoke clearly and effectively.
Their second ground of appeal appears to be that they did not receive a number of other orders they sought – that is, an order addressing all of their claims, outlined above in paragraph [4]. In effect they are expressing their general dissatisfaction with the decision of the learned Magistrate which, in their view, was wrong.
The Magistrate was obliged to hear and determine the matter according to law and to make orders that he considered fair and equitable in order to resolve the dispute: QCAT Act, s 13.
He gave Reasons for his decision in which he concluded that Mr and Mrs Michel had been inconvenienced by the urine smell in the home; that they had, however, failed to mitigate any damage they might have suffered by failing to act upon the agreement they made with the agent shortly after they took up the tenancy; and, that a fair measure of their rightful compensation could be determined by reference to the value of the time and effort they had themselves expended on cleaning up the dog urine, and relieving the smell, in the home.
In the course of the evidence it became apparent that quite heated exchanges had taken place in the past between the Michels and the letting agents, and the learned Magistrate spoke to Mr Michel in general terms about the effect a poor relationship between him and Mrs Michel on the one hand, and the agents and the owner on the other, would have during the balance of the tenancy agreement. These remarks of the learned Magistrate were not – as he said in his final Reasons – relevant to his decision and were more in the nature of benign advice to the tenants that, firstly, it might have been more prudent for them to act upon the earlier agreement to leave and that they ought to take steps now, in their own interests, to find other premises before or at the expiration of the current lease.
Nothing in these remarks suggests any bias against Mr and Mrs Michel; and neither can they be said to have had any obvious effect upon the learned Magistrate’s conclusion to award them compensation, or the amount of it.
The Queensland Parliament has made it clear, in the QCAT Act, that so far as possible minor civil disputes of this kind should be finally resolved by Members and Adjudicators, including Magistrates, hearing and determining them in the way that occurred here. That is apparent from the insertion, in the QCAT Act, of the requirement of the party seek and obtain “leave” to appeal before an appeal will be heard and determined.
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?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[3] 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?[4]
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at 2.
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]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.
In the present case the learned Magistrate was required to decide whether or not Mr and Mrs Michel should be compensated for the urine smell and, if so, how much. He decided the first question in their favour.
Then, he was required to determine a fair and equitable sum for that compensation. In that respect he was not persuaded that a 95% reduction in the rent and a payment of an additional $4,000.00 by the lessor to the tenants reflected the appropriate measure of compensation. Rather, he concluded that a proper figure was $1,500.00, referrable to the time and effort Mr and Mrs Michel had themselves spent in cleaning up the premises.
In light of their very early agreement to quit the premises altogether, the learned Magistrate was plainly right to take into account the fact that, with full knowledge of any problems caused by the urine smell, they had nevertheless elected to remain in the premises and had not, for that reason, taken steps that were reasonably available to them to mitigate their loss. It is also apparent that he was unpersuaded that the very large amount of compensation they claimed was fair or reasonable in the circumstances.
Having reached those conclusions he then settled upon the figure that he ultimately awarded for compensation in a way which, in the circumstances of the evidence presented to him, satisfies the statutory test of being fair and equitable.
In light of these conclusions no error on the part of the learned Magistrate has been shown warranting the grant of leave to appeal, and the application must be refused.
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