Mizzii v Ballin - [2019] QCAT 216

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Mizzii & Anor v Ballin & Anor [2019] QCAT 216

PARTIES:

THERESA MIZZII
ALFRED VOLLMER
(applicants)

v

MICHELLE SIMONE BALLIN
DAVID ERIC WILLS

(respondents)

APPLICATION NO/S:

RSL158-18

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

10 July 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

Michelle Simone Ballin and David Eric Wills pay to Theresa Mizzii and Alfred Vollmer the sum of $9,563.00.

CATCHWORDS:

LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – where tenant in default of essential terms under Lease – where rent arrears – where rates owing – where cleaning and make-good owing – where amount owing for furniture and equipment sold under Chattels Agreement – whether interest payable – where Tribunal does not have statutory discretion to award interest – where enabling provision did provide for interest

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where strong indicator against awarding of costs – where nothing to displace usual position that each party must pay own costs

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102, s 103
Retail Shop Leases Act 1994 (Qld), s 103

Clarke v Cascade Pools (Qld) Pty Ltd [2010] QCAT 323
Glamoren Pty Ltd v Lee & Anor [2012] QCATA 176
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412

REPRESENTATION:

Applicants:

Self-represented

Respondents:

Self-represented

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

What is this Application about?

Theresa Mizzii and Alfred Vollmer leased a shop to Michelle Simone Ballin and David Eric Wills[1] and sold them furniture and equipment in the shop.[2] Ms Ballin and Mr Wills defaulted in payments due under the lease and for the goods. Ms Mizzii and Mr Vollmer seek payment of the outstanding amounts.
[1]Lease dated 6 July 2017.
[2]Chattels Agreement dated 6 July 2017.
Ms Ballin and Mr Wills did not file a Response to the Application. Consequently, the alleged defaults and amounts claimed are not in dispute. The Tribunal assesses the amounts owing under the below headings.[3]
[3]Retail Shop Leases Act 1994 (Qld), s 103.
What is the amount owing for rent arrears?
As tenants, Ms Ballin and Mr Wills must pay rent of $1,650.00 per calendar month.[4]
[4]Lease dated 6 July 2017, clause 2.1(a), Item 2 of Reference Schedule.
Ms Mizzii and Mr Vollmer filed Invoices for rent arrears totalling $6,150.00.[5] This evidence is undisputed and the Tribunal finds the amount owing for rent arrears is $6,150.00.
[5]Invoice 809 dated 23/11/17 for $1,300.00, Invoice 887 dated 19/12/17 for $1,650.00, Invoice 959 dated 23/10/18 for $1,550.00, Invoice 1071 dated 23/02/18 for $1,650.00.
What is the amount owing for rates?
As tenants, Ms Ballin and Mr Wills must pay rates.[6]
[6]Lease dated 6 July 2017, clause 2.1(b).
Ms Mizzii and Mr Vollmer filed Invoices for outstanding rates totalling $2,173.20.[7]…

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 Mizzii v Ballin

Details

AGLC: Mizzii v Ballin [2019] QCAT 216
Case: [2019] QCAT 216
Decision Date: 10 July 2019

CaseChat Overview and Summary

The case of Mizzii v Ballin involves a dispute between the landlords, Theresa Mizzii and Alfred Vollmer, and the tenants, Michelle Simone Ballin and David Eric Wills. The landlords sought to recover unpaid rent, rates, and costs associated with cleaning and make-good works, as well as the sale of furniture and equipment under a Chattels Agreement. The tenants were in default of several essential terms of their lease agreement, leading to the landlords' claim for outstanding amounts. The matter was heard in the Civil Division of the Supreme Court of New South Wales.

The primary legal issues before the court were whether interest was payable on the amounts owed by the tenants and whether costs should be awarded to the landlords. The court had to consider whether the Tribunal had statutory discretion to award interest, despite the enabling provision providing for interest. Additionally, the court needed to determine if there were any circumstances that would warrant awarding costs to the landlords, given the strong indicator against such an award.

The court determined that the Tribunal did not have statutory discretion to award interest, despite the enabling provision providing for interest. The court found that the usual position in such matters is that each party pays its own costs, and there were no circumstances to displace this principle. Therefore, the court ordered the tenants, Michelle Simone Ballin and David Eric Wills, to pay the landlords, Theresa Mizzii and Alfred Vollmer, the sum of $9,563.00, without awarding costs to the landlords.

The court's final order was that Michelle Simone Ballin and David Eric Wills were to pay Theresa Mizzii and Alfred Vollmer the sum of $9,563.00, without any costs being awarded to the landlords.

Orders

Orders of the court

Michelle Simone Ballin and David Eric Wills pay to Theresa Mizzii and Alfred Vollmer the sum of $9,563.00.

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:	Mizzii & Anor v Ballin & Anor [2019] QCAT 216
PARTIES:	THERESA MIZZII ALFRED VOLLMER (applicants)
v
MICHELLE SIMONE BALLIN DAVID ERIC WILLS (respondents)
APPLICATION NO/S:	RSL158-18
MATTER TYPE:	Other civil dispute matters
DELIVERED ON:	10 July 2019
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Member Hughes
ORDERS:	Michelle Simone Ballin and David Eric Wills pay to Theresa Mizzii and Alfred Vollmer the sum of $9,563.00.
CATCHWORDS:	LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – where tenant in default of essential terms under Lease – where rent arrears – where rates owing – where cleaning and make-good owing – where amount owing for furniture and equipment sold under Chattels Agreement – whether interest payable – where Tribunal does not have statutory discretion to award interest – where enabling provision did provide for interest PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where strong indicator against awarding of costs – where nothing to displace usual position that each party must pay own costs Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102, s 103 Retail Shop Leases Act 1994 (Qld), s 103 Clarke v Cascade Pools (Qld) Pty Ltd [2010] QCAT 323 Glamoren Pty Ltd v Lee & Anor [2012] QCATA 176 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412
REPRESENTATION:
Applicants:	Self-represented
Respondents:	Self-represented
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).