Milwain v Laurie Evans Real Estate

[2012] QCATA 72

CITATION: Milwain v Laurie Evans Real Estate and Anor [2012] QCATA 072

PARTIES:	Glen Gary Milwain (Appellant)
v
Laurie Evans Real Estate Pty Ltd ACN (First Respondent) Jennifer Angelique Milwain (Second Respondent)

APPLICATION NUMBER: APL287-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Judge Fleur Kingham, Deputy President

DELIVERED ON: 27 April 2012

DELIVERED AT: Brisbane

ORDERS MADE: 1. The application for leave to appeal is dismissed.

CATCHWORDS: APPEAL – LEAVE TO APPEAL – PROCEDURAL FAIRNESS – whether the Magistrate considered relevant evidence – where the tenant sought to raise arguments in the appeal not raised at first instance – where no error made out

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

1. Mr Milwain applied to the tribunal seeking orders regarding a residential tenancy.  The application itself is not clear.  However, it appears he initially sought orders declaring that Laurie Evans Real Estate had breached his tenancy agreement by unilaterally renegotiating it with Ms Milwain in respect of premises for which the Milwains were joint tenants, as well as orders recognising his rights under the agreement.

2. A Magistrate heard the application on 29 April 2011 and 9 May 2011.  He clarified the orders sought by Mr Milwain.  In essence, Mr Milwain indicated that he wanted orders that Laurie Evans Real Estate terminate his lease on the premises under the Residential Tenancies and Rooming Accommodation Act 2008 (the Act), and that the bond monies be released back to him and the Department of Housing, which had loaned the bond to the Milwains.

3. It was common ground that the bond was $1,480.  Mr Milwain’s evidence was that by 9 May 2011, $500 in total had been repaid against the loan.  Mr Milwain sought either orders in his favour for the full amount of the bond loan that had been repaid, or alternatively half of the bond amount plus the equivalent of one weeks rent of $370.  The equivalent of one week’s rent was claimed, it seems, on the basis that the tenancy agreement required rent to be paid two weeks in advance and that he was entitled to the equivalent of one week’s rent,[1] although somewhat confusingly Mr Milwain at some stage seemed to suggest he was entitled to it because of the difficulty he’d been occasioned by the situation.[2]

   [1]        Transcripts 29 April 2011, page 7 and 9 May 2011, page 7.

   [2]        Transcript 9 May 2011, page 12.

4. On 29 April 2011, there was apparent agreement between the parties about the termination of the lease.  The learned Magistrate also indicated to Mr Milwain that he needed to provide evidence in support of his claim for monies to be paid to him.  The Magistrate adjourned the matter part-heard to 9 May 2011 so that further evidence could be presented.  He also requested that the parties formalise the agreement to terminate the lease in documentation signed by all of them.

5. On 9 May 2011, the parties confirmed that the tenancy had been terminated.  The learned Magistrate received evidence from each of the parties regarding the outstanding issues.  It was common ground that Mr Milwain had not lived in the premises since 20 December 2010 following Police action.  Mr Milwain had bank statements to provide:[3] however, as Mr Milwain confirmed that the payments revealed in the bank statements tallied with the rent ledger supplied by Laurie Evans Real Estate[4] the bank statements were not ultimately tendered into evidence.

   [3]        Transcript 9 May 2011 page 4.

   [4]        Transcript 9 May 2011, pages 16-17.

6. The evidence presented by a representative of Laurie Evans Real Estate was to the effect that by 17 November 2010, the Milwains were not in advance with their rent as they paid several days late on a few occasions.  She told the tribunal that on 5 November 2011 the Milwains paid their rent for the week 11 November to 17 November, but that rent was not paid until the 17^th, and so there was no rent in advance at that stage which was before Mr Milwain left the premises.[5]  Ms Milwain agreed with this.[6]  Mr Milwain said that they were always ahead,[7] despite acknowledging that there were a ‘couple of days’ when it was paid a ‘couple of days late’.[8]  At the end of the tenancy, the rent was paid up but was not in advance.

   [5]        Transcript 9 May 2011, page 8,13.

   [6]        Transcript 9 May 2011, 13-14.

   [7]        Transcript 9 May 2011,16.

   [8]        Transcript 9 May 2011, page 17.

7. In respect of the bond loan repayments, Mr Milwain’s evidence was to the effect that $12.50 was deducted from the Centrelink benefits of each of the Milwains each fortnight, and would be until the bond loan was repaid in full.[9]

   [9]        Transcript 9 May 2011, pages 9-11.

8. The learned Magistrate accepted that the Milwains had repaid $500 of the bond loan.  In respect of the claim for $370, he accepted that if Mr Milwain had paid money for a benefit that he did not receive that there may be a legitimate claim.  He found that although at some times the rent was paid in advance, by the end of the lease it was not in advance.  On the basis of the evidence before him, he was not satisfied that it was appropriate for him to order that Ms Milwain reimburse Mr Milwain for one week’s rent for any period during which he had contributed to rent.  

9. He made orders that the Residential Tenancies Authority pay the rental bond of $1,480 in three amounts; namely, $980 to the Housing and Homelessness Service, and $250 to each of Mr Milwain and Ms Milwain.

10. Mr Milwain has filed an application seeking leave to appeal and appeal the decision of the learned Magistrate.  The grounds of appeal are difficult to discern from the application.  However, they seem to be essentially that the Magistrate failed to acknowledge the breaches of the tenancy agreement and the Act by Laurie Evans Real Estate and Ms Milwain as nominated in his original application; that the Magistrate failed to give him the opportunity to provide his documents and made the decision based on documents supplied by the respondents only and that Ms Milwain had not allowed him access to the documents he needed in relation to the tenancy; that the Magistrate said he did not want to do the mathematics to calculate the correct amount; and that the date the tenancy commenced was 5 August 2010 not 29 July 2010 alleging the tenancy agreement has been altered.  He also makes some statements about his beliefs about collusion between the respondents.

11. Paraphrasing Mr Milwain’s words, it appears he seeks orders that the Act has been breached and awarding him a penalty to compensate him for the breach and the prolonged duration of inconvenience to him.

12. The parties have all provided written submissions.  The submissions from the parties are largely unhelpful as they do not address whether leave to appeal should be granted or Mr Milwain’s nominated grounds of appeal.  Laurie Evans Real Estate focuses upon restating their case and providing copies of various documents some of which were not in evidence before the tribunal at hearing.  Ms Milwain gives a statement about what she says occurred, some of which does not relate to the tenancy issues and was not before the tribunal in evidence.

13. Mr Milwain in submissions in reply seeks to have Ms Milwain’s submissions struck out.  I refuse that application.  Ms Milwain is representing herself in the proceedings and is unlikely to be familiar with the law.  However, in deciding the application for leave to appeal and appeal, I have taken into account only those matters which are relevant.  Evidence which was not before the tribunal at hearing could only be considered on the hearing of an appeal with the leave of the Appeal Tribunal.[10]  For the reasons set out below, I do not need to consider whether the additional evidence which the parties have provided in and/or with their submissions should be allowed into evidence.

    [10] QCAT Act, s 147(2).

Applicable law

1. Leave to appeal is required because the decision was made in a proceeding for a minor civil dispute.[11]

   [11] QCAT Act, s 142(3)(a)(i).

2. 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?

3. An appeal is not another opportunity for a party to argue their case.  It is for correcting errors made by the tribunal which decided the proceeding.  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.[12]

   [12]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.

Discussion and decision

1. Mr Milwain’s original application was unclear in its terms.  The learned Magistrate clarified the orders he sought.  Mr Milwain did so, defining those matters with which he wished to proceed at hearing.

2. Agreement was reached in relation to the termination of the tenancy agreement without the need for orders.  The outstanding matter which Mr Milwain asked the tribunal to determine related to the disbursement of rental bond monies and the claim for $370.

3. Mr Milwain now seeks leave to appeal because alleged breaches of the tenancy agreement and the Act were not acknowledged by the Magistrate.  However, the issues contested at the hearing related only to the claim made by Mr Milwain against the bond monies.  Therefore, the alleged breaches did not need to be addressed to determine the matter.  No error is identified in the learned Magistrate’s decision on this basis. 

4. Mr Milwain nominates as a ground of appeal, that the Magistrate failed to give him the opportunity to provide his evidence and that Ms Milwain did not provide him with access to documents.

5. The hearing was adjourned part-heard on 29 April 2011, at least in part to allow Mr Milwain the opportunity to provide further evidence in support of his claim.  He did obtain bank statements and had them with him on 9 May 2011.  Ultimately, he did not give them to the tribunal, although he could have asked to do so.  It became unnecessary for him to do so because he agreed that payments of rent were made as set out in the rent ledger provided by Laurie Evans Real Estate.  He had checked the bank statements and the rent ledger against one another.

6. It is apparent from the transcript that the documents which he intended to obtain for the hearing were the bank statements.[13]  Further, Mr Milwain did not suggest on 9 May 2011 that there was additional evidence which he required for hearing and which was in Ms Milwain’s possession.  An error is not identified in the Magistrates determination of the proceeding and Mr Milwain could not succeed on this ground of appeal.

   [13]        Transcript 9 May 2011, page 4.

7. Mr Milwain asserts that the Magistrate did not want to perform the necessary mathematical calculation to decide the matter.  Although it is not clear, this may relate to a comment made by the Magistrate[14] during the hearing to the effect that the most efficient way of determining the dates rent is paid to is with a ‘computer system’.  However, it is clear from the surrounding discussion between the Magistrate and Mr Milwain, that Mr Milwain did not challenge the dates and payments recorded in the rent ledger.  He did not suggest that the calculations presented to the learned Magistrate were incorrect in any way.  Therefore, Mr Milwain could not succeed on this ground of appeal.

   [14]        Transcript 9 May 2011, page 17.

8. Mr Milwain asserts as a ground of appeal that the date of the tenancy was not the date nominated in the agreement, but a week later.  Presumably, although this is not specified, he suggests that therefore the dates set out in the rent ledger are incorrect by a week, which would affect whether rent was in advance at any point in time.  The difficulty with this ground of appeal is that at the hearing, he did not raise this issue and specifically agreed that the entries in the rent ledger were correct.  Mr Milwain cannot on appeal seek to reargue his case, in this instance, on a basis not raised at hearing, in an attempt to secure a different result.  The appeal process is for identifying and correcting error of the tribunal in determining the matter.  No error is identified by this ground.

9. Finally, Mr Milwain makes some vague statements about collusion.  No error of the learned Magistrate is suggested or identified by Mr Milwain.

10. Therefore, none of the nominated grounds of appeal could succeed as no error of the learned Magistrate is identified.  There is no basis on which to grant leave to appeal.  The application is dismissed.