Nasti v Professionals Real Estate
[2010] QCATA 80
•25 November 2010
| CITATION: | Nasti v Professionals Real Estate [2010] QCATA 80 |
| PARTIES: | Karl Nasti (Applicant/Appellant) |
| v | |
| Professionals Real Estate (Respondent) |
APPLICATION NUMBER: APL131-10
| MATTER TYPE: |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Justice Alan Wilson, President Susan Gardiner, Member |
DELIVERED ON: 25 November 2010
DELIVERED AT: Brisbane
ORDERS MADE: Application for leave to appeal refused
| CATCHWORDS : | RESIDENTIAL TENANCIES – GOODS LEFT IN PREMISES – COMPENSATION – where the tenant vacated premises but left behind his fish and fish tank – where the agents sold the fish and the tank – where the adjudicator found that it was unsafe and unhealthy for the landlords to keep the fish and the tank in their possession – where the adjudicator dismissed the tenant’s claim – whether adjudicator erred in dismissing the claim Queensland Civil and Administrative Tribunal Act 2009, s 142(3) Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCA 456, applied Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, cited McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, cited Vetter v Lake Macquarie City Council (2001) 202 CLR 439, cited |
REASONS FOR DECISION
President:
I have had the benefit of reading the reasons of QCAT Member Ms Gardiner, in draft. I agree with her reasons, her conclusions, and the order she proposes.
Member Susan Gardiner:
Mr Karl Nasti was one of three tenants who entered into a tenancy agreement for a property in Southport in February 2009. This lease was terminated on 9 February 2010 and a warrant for possession issued. The tenants were to be evicted on 20 February 2010 but two extensions were given by the police to the tenants, who finally moved out of the premises on 24 February 2010.
Mr Nasti left a fish tank in the premises when he vacated. The fish tank, its contents and equipment were sold by the agents to a pet shop for $250 under s 363 of the Residential Tenancies and Rooming Accommodation Act 2008 (the RTA Act), as goods left on the premises.
Section 363 provides, relevantly, that goods left in residential premises after a tenancy agreement expires may be sold by the landlord if storage would be unhealthy or unsafe, or would cause the market value of the goods to be completely or substantially depreciated; or, if the cost of removing and storing and selling the goods would be more than the proceeds of sale.
Proceedings were commenced in QCAT by the owner of the premises to recover compensation and damages for various matters relating to the tenancy, and by Mr Nasti for compensation for the sale of the fish tank. The applications were, sensibly, heard together by the learned adjudicator who made a number of findings of fact adverse to Mr Nasti’s claim and ultimately disregarded it as, in effect, any form of set off against the claims of the owner; and, finally determined the matters by an order of payment in favour of the premises owner.
Mr Nasti seeks to appeal the decision concerning the fish tank. As this matter arises from a Minor Civil Dispute, leave to appeal is necessary: Queensland Civil and Administrative Tribunal Act 2009, s 142(3).
Mr Nasti asserts that the adjudicator:
(a)did not take into account his rights under s 363 of the RTA Act;
(b)allowed reliance by the agent on valuation evidence not from a specialist aquarium shop and which undervalued the fish tank, fish plant and equipment, and disregarded the quotes supplied by Mr Nasti from a specialist aquarium shop at the hearing;
(c)was biased against him and in favour of the owner and agent on the day because he was vocal in the hearing about his perceived miscarriage of justice.
The last allegation can be quickly dismissed: the transcript of the proceedings shows that the learned adjudicator carefully considered all of the evidence and gave Mr Nasti ample opportunity to present his case. There is simply nothing to support Mr Nasti’s assertion of bias against him; he got, on any view, a manifestly fair and unbiased hearing.
The reasons made a number of findings of fact concerning the fish tank. Although they do not specifically refer to s 363 of the RTA Act, again the transcript shows a lengthy examination of the evidence of all parties in a way which directly reflects, and addresses, the matters to which s 363 draws attention.
In particular while the learned adjudicator accepted that a quotation relied upon by the agent to sell the fish tank may not, on a review at the hearing, have been an honest and open estimation of value of the fish in the tank, it was also accepted that it was not proper, safe or practical for the agent to store the fish tank and the fish. The learned adjudicator also found that Mr Nasti had both the opportunity, and the means, to remove the fish tank if he had wished prior to the vacation of the premises.
It is plain, then, that the learned adjudicator made findings which excused, in terms referrable to s 363, the actions of the landlord’s agent in selling the tank and the fish.
Where a decision of the Tribunal involves questions of fact and degree there will be no grounds for appeal so long as the correct principles of law are applied[1] and the final conclusion is not unreasonable[2].
[1]Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCA 456 at 286
[2]Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 450
There is no demonstrated or discernable error in the learned adjudicator’s decision. There is no question of importance about which a further argument and a decision of the Appeal Tribunal would be of public advantage[3]. Leave to appeal should be refused.
[3] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388; McIver Bulk Liquid
Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
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