Oliveira v Doug Disher Real Estate

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Oliveira v Doug Disher Real Estate [2024] QCATA 118

PARTIES:

RUI TORRES DE OLIVEIRA

(appellant)

v

DOUG DISHER REAL ESTATE

(respondent)

APPLICATION NO/S:

APL272-23

ORIGINATING APPLICATION NO/S:

MCD22-23

MATTER TYPE:

Appeals

DELIVERED ON:

25 October 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member PG Stilgoe OAM

ORDERS:

Leave to appeal is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – DENIAL OF NATURAL JUSTICE – residential tenancy matter – where appellant sought a return of the tenancy bond – where Tribunal apportioned tenancy bond – where appellant contends denial of natural justice – whether tribunal addressed and considered the appellant’s claim to part of the residential tenancy bond – whether any basis to interfere with the tribunal’s findings of fact – whether any ground established to grant leave to appeal

Queensland Civil and Administrative Tribunal Act 2009

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Kioa v West (1985) 159 CLR 550
Mobil Oil Australia Pty Ltd v FCT (1963) 113 CLR 475
Pickering v McArthur [2005] QCA 294
Pryor v Ray White Hervey Bay [2015] QCATA 151

Waterford v The Commonwealth (1987) 163 CLR 54

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

Rui Torres de Oliveira rented a house in Indooroopilly from Doug Disher Real Estate (Disher) in May 2019.
In May 2023, when Mr Oliveira left the property, Disher claimed his bond for cleaning, gardening and handyman services, which it said were necessary to return the property to its original state. It also claimed a portion of the bond for unpaid rent.
Mr Oliveira disputed the amounts claimed by Disher and the matter came before an adjudicator on 22 August 2023 for hearing.
Based on the evidence before it, the learned adjudicator found Mr Oliveira had for the most part returned the property to its original state, but for some outstanding issues.[1] The learned adjudicator decided Mr Oliveira was liable for 25 per cent of the bond plus $70 for outstanding rent. The Tribunal ordered the bond be released as $1,640.63 to Mr Oliveira, and $559.37 to Disher.
[1]Transcript 1-31 to Transcript 1-32.
Mr Oliveira wants to appeal the decision.
He argues he was denied procedural fairness because:
(a)the learned adjudicator did not consider the evidence he submitted in advance of the hearing; and,
(b)as a result, he had to use his computer during the hearing to show the evidence he was relying on to the learned adjudicator; and,
(c)the learned adjudicator allowed Disher to submit new evidence at the hearing.
He also submits he was not shown any evidence which proved he owed $70 in outstanding rent.
To succeed in an appeal from a decision of the Tribunal in its minor civil disputes jurisdiction, Mr Oliveira must be given leave to appeal.[2] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice caused by that error.[3]
[2]Queensland Civil and Administrative Tribunal Act, s 142(3)(a)(i).
[3]Pickering v McArthur [2005] QCA 294, [3].
For the reasons set out below, leave to appeal is refused.

Mr Oliveira’s evidence

In this appeal, Mr Oliveira electronically filed hundreds of photographs and numerous videos in nine volumes.[4] He says he submitted the same evidence in advance of the initial hearing in August 2023. He says the evidence proves he left the property in the same, if not a better, condition than when he moved in.
[4]In his Statement of appealing dated 4 October 2023 he described the volumes as follows: “1) Statement of Evidence; 2) Evidence A; 3) Evidence B; 4) Evidence C; 5) Evidence D (which was separated in 3 different files due to its size and the fact that Qcase system only allowed files up to 200MB); 6) Evidence E; 7) Evidence F; 8) Evidence G (which was separated in 6 different files due to its size and the fact that Qcase system only allowed files up to 200MB); 9) Evidence H; 10) Evidence I.”
Disher, through its agent, said at the hearing it had not seen the evidence filed by Mr Oliveira.[5] As is apparent from the transcript, the learned adjudicator had not received the evidence either.[6] The reason why is unclear.
[5]Transcript 1-16, lines 26, 38-39; Transcript 1-9, line 45 to 1-10, line 1.
[6]Transcript 1-13, line 7.
Whether it was an issue with the Tribunal’s case management system or some error in its filing, relevant evidence was not immediately available to the learned adjudicator.
The learned adjudicator considered standing the matter down so Mr Oliveira could file (or refile) the evidence. Instead, in the interest of dealing with the matter in a way that was accessible, fair, just, economical, informal and quick,[7] the learned adjudicator chose not to stand the matter down and to proceed to make a decision.[8]
[7]Queensland Civil and Administrative Tribunal Act 2009, s 3(b).
[8]Transcript 1-28, lines 35-40.
The Tribunal must give both parties the reasonable opportunity to present their case. What is reasonable will be considered in light of the circumstances of the case, the nature of the inquiry, the rules under which the Tribunal acts, and the subject-matter being dealt with.[9] What is fair ultimately depends on the circumstances of the situation.[10]
[9]Kioa v West (1985) 159 CLR 550 at 613.
[10]Mobil Oil Australia Pty Ltd v FCT (1963) 113 CLR 475 at 504 per Kitto J.
It is true the learned adjudicator did not have the benefit of all Mr Oliveira’s evidence. It is true this evidence should have been available through the Tribunal’s case management system. It is true he had to use his own computer to show the learned adjudicator relevant evidence. None of these circumstances is ideal, but the transcript shows that Mr Oliveira took the learned adjudicator to the relevant photos for each element of Disher’s claim.
Even if the learned adjudicator had access to that evidence before the hearing, Mr Oliveira’s task would have been the same – to show the Tribunal the particular evidence that related to the issues. In its minor civil disputes jurisdiction, the Tribunal has no capacity to sift through hundreds of photographs before a hearing to determine the validity of claims.
It is true that Disher provided hard copies of its material at the hearing. Disher’s agent told the learned adjudicator that Mr Oliveira had received these documents and Mr Oliveira did not disagree with that assertion.
There is no basis for Mr Oliveira’s claim that he was denied procedural fairness.

Outstanding rent

The Appeal Tribunal will usually not disturb findings of fact where there is evidence capable of supporting a decision-maker’s conclusions and there is evidence capable of supporting any inferences underlining it.[11]
[11]Dearman v Dearman (1908) 7 CLR 549 at 561-562; Fox v Percy (2003) 214 CLR 118 at 125-126.
I am satisfied the learned adjudicator had sufficient evidence to support her conclusions.[12] It included the entry, exit and routine inspection reports filed by Disher, the photos filed prior to or shown by Mr Oliveira at the hearing, and the oral evidence of both parties.
[12]Transcript 1-29, lines 44-47; Transcript 1-30, lines 7-8.
Mr Oliveira submits the learned adjudicator decided he still owed one day of rent without any supporting documentation.
That is true but the learned adjudicator took oral evidence from both parties on this point as follows:
ADJUDICATOR STROUD: … And so we have the rent – what’s the rent for $70?
MS McKILLOP: Well, he vacated on the 19^th. His rent is paid to the 12^th with an additional amount of $550, leaving $70 outstanding.
MR DE OLIVEIRA: I didn’t know, and of course I will pay for that without any problems.
ADJUDICATOR STROUD: Okay. All right. That’s – so that’s not in dispute, the $70?
MR DE OLIVEIRA: Yeah. I was not aware.[13]
[13]Transcript 1-29, lines 1-13.
The learned adjudicator based her decision on the oral evidence of the parties as she was entitled. Although documentary evidence is, usually, more compelling, the absence of documentary evidence does not mean that a claim should be denied. The learned adjudicator had a factual basis for awarding $70 in favour of Disher and I can find no basis to come to a different view

Orders

The application for leave to appeal is refused.

In the case of Oliveira v Doug Disher Real Estate, the appellant sought the return of their tenancy bond following a dispute over the condition of a residential property. The matter was heard by the Queensland Civil and Administrative Tribunal (QCAT) and subsequently by the Queensland Civil and Administrative Tribunal Appeal Board (QCATAB). The appellant contested the tribunal's decision to apportion the bond, arguing that it was denied natural justice. The appellant's central contention was that the tribunal did not properly address and consider their claim to a portion of the bond. The legal issues in the case involved determining whether the tribunal's findings of fact were open to challenge, whether any ground was established for granting leave to appeal, and whether the appellant's claim to part of the bond was properly considered.

The court examined the tribunal's decision to ensure it had addressed and considered all relevant evidence and arguments put forth by the appellant. The court concluded that the tribunal had indeed considered the appellant's claim and provided a reasoned decision. The court held that the tribunal's findings of fact were open to challenge only if there was a clear error of fact, which was not demonstrated in this case. Furthermore, the court found that there was no established ground for granting leave to appeal, as the appellant had not shown any significant procedural error or misapplication of law by the tribunal. The court also rejected the argument that the appellant was denied natural justice, finding that the tribunal had adequately addressed the appellant's claims.

Based on the above findings, the court determined that there was no basis to interfere with the tribunal's decision. The appeal was dismissed, and leave to appeal was refused. This outcome means that the tribunal's decision stands, and the appellant is not entitled to a return of the full tenancy bond.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established