Morris v Ryan
[2014] QCATA 221
•14 August 2014
| CITATION: | Morris v Ryan & Anor [2014] QCATA 221 |
| PARTIES: | Theodore Morris (Appellant) |
| v | |
| Peter Ryan and Debbie Ryan (Respondents) |
| APPLICATION NUMBER: | APL095-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 12 August 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 14 August 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application for leave to appeal is dismissed |
| CATCHWORDS: | APPLICATION FOR LEAVE TO APPEAL – minor civil dispute – residential tenancy dispute – whether tenants entitled to rent reduction for loss of amenity – whether landlord liable in part for tenants’ electricity expenses – where awards made for those items – whether any appellable error shown – where no such error shown – where leave to appeal refused Queensland Civil and Administrative Tribunal Act 2009 ss 32, 142 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Snell v Moynihan [2011] QCATA 316 Walton v New Lakelands Pty Ltd [2013] QCATA 49 |
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 late 2008 or early 2009[1] Debbie and Peter Ryan (“the tenants”) went into occupation of residential premises at 202 Simpsons Road, Currumbin, the property of the appellant Theodore Morris (“the landlord”). The tenants occupied the two top floors of the four-level house.
[1]“Five years going on six years”: Transcript of hearing 4 February 2014 (“Transcript”) page 6 line 14 (D Ryan).
It was a remarkably informal arrangement. Rent of $400 per week was paid[2], but there was no lease document. However, by the end of 2013 the tenants wanted to formalise their position. Other points of dispute also arose, including a claim for $3,000 for electricity used by the landlord or his builder, and several alleged defects in the premises.
[2]For the first two weeks, $425: ibid page 37 line 20.
On 6 January 2014 the tenants filed a minor civil dispute against the landlord, complaining:
I [sic] want a lease, as I haven’t received one yet, after 5 years. I want [the landlord] to have his own mail address, as he has been using ours for 5 years. I want [him] to sign my rent certificate form to receive 2 years’ back pay. He has been using my power for 3 years, months at a time, renovating down on 2 bottom levels where we have no access to. I want to keep paying $400 a week until the house is fixed. We want [the landlord] to call us if he is coming round to the house.
The Tribunal hearing took place at Coolangatta on 4 February 2014, when it was ordered that:
1The [landlord] pay the [tenants] the sum of $3,084.
2The rent payable by [the tenants] to the [landlord] shall be $350 per week until the items referred to in the decision as requiring attention[3] be repaired, replaced or rectified, after which the rent, assuming that the tenancy still persists[4], shall return to $400 per week.
[3]Mould, a leaking roof, a defective stove wasting power, landlord’s rubbish not removed, and the probability or possibility of a snake in the ceiling.
[4]The tenants vacated the premises in or about March 2014: note by tenants to the Tribunal, received 26 May 2014.
A claim relating to statutory rent assistance was dismissed for want of jurisdiction.[5]
[5]Transcript page 35.
On 20 February 2014 the landlord filed the present application, seeking leave to appeal[6] upon these rather obscurely expressed grounds:
The work and materials were completed at the time. The tenants have been compensated for it, therefore compensation is not valid. We have receipts for the material purchased for that work to be carried out at that time. The electricity money ($400) has already been deducted off the tenants’ rent.
[6]Leave is required by QCAT Act s 142(3)(a)(i).
Attached to the application for leave are copies of invoices dated 16 October, 24 October, 25 October, 6 November, 12 November, 28 November, 5 December and 7 December 2012 respectively, and a delivery docket dated 16 October 2012. No other material is offered in support of the appeal.[7]
[7]As notified by the landlord to the Tribunal on 12 March 2014.
On 26 May 2014 the tenants filed a brief manuscript note stating: ‘I Debbie and Peter Ryan are not going ahead with the appeal to stay as we have already left the house ... 2 months ago’. That note is misconceived; it is for the appellant landlord to decide whether or not to proceed. There is no indication that he has withdrawn his appeal.
However, it is incumbent upon the landlord to show, in the proceedings below, an arguable ground of appeal, that is some legal error which, if left uncorrected, would impose a substantial injustice upon him.[8] No question of general importance arises here.
[8]Snell v Moynihan [2011] QCATA 316 at [8].
The landlord has made no attempt to demonstrate appellable error in this case, and I can discern none. As primary decision maker, the Adjudicator was the judge of fact and credit, and it is not for an appeals tribunal to “second guess” his findings, for which there was evidence. Indeed, the Adjudicator dealt admirably with chaotic submissions, as well as a farrago of accusations in which ‘liar’ was bandied about, and such pleasantries as: ‘You live in the bush. The only snakes in there are you’. ‘Really, you’re the snake’. ‘And you’re a gold digger’ - were exchanged.
An application for leave to appeal is not an occasion to repeat and reargue evidence that was reasonably rejected by the first decision-maker, or to present material that could have been put before him, but in fact was not.[9] There is nothing to suggest that the invoices attached to the application were unavailable at the time of the trial; that being so, they are not admissible on appeal.[10] Besides, there is nothing to indicate that they relate to the parts of the premises occupied by the tenants, as distinct from those retained by the landlord. Indeed, it was admitted that the landlord made renovations to the latter, where ‘nobody lives’.[11]
[9]Snell v Moynihan [2011] QCATA 316 at [10]; Thompson and Anor v Jedanhay Pty Ltd [2012] QCATA 246 at [28].
[10]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404; Walton v New Lakelands Pty Ltd [2013] QCATA 49.
[11]Transcript page 27 line 8 (landlord in response to adjudicator).
The allowance of $200 for electricity used in making those renovations is reasonably based on a ‘spike’ in electricity charges for September-December 2012.[12] The award of $2,600[13] for loss of amenities[14] is appropriately based on section 94 of the Residential Tenancies and Rooming Accommodation Act 2008.Inevitably an exercise of that discretion is incapable of ‘mathematical calculation or determination by application of a formula’,[15] particularly when the evidence is so imprecise as it was in this case, but there is nothing to suggest that the present estimate is unreasonable.
[12]Transcript page 47 lines 15 – 20.
[13]Explained in transcript pages 48 – 49.
[14]See footnote 3, above.
[15]Underwood v Department of Communities (State of Queensland) [2013] 1 Qd R 252; [2012] QCA 158 at [26].
In the absence of any arguable ground of appeal this application for leave to appeal must be dismissed.
ORDER
The application for leave to appeal is dismissed.
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