Oliver v Waterfront Management Pty Ltd

[2021] QCATA 147

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Oliver & Anor v Waterfront Management Pty Ltd [2021] QCATA 147

PARTIES:

DANIEL FREDERICK OLIVER & ROSWITHA MARIA OLIVER

(applicants)

v

WATERFRONT MANAGEMENT PTY LTD

(respondent)

APPLICATION NO:

APL368-20

MATTER TYPE:

Residential tenancy matters

DELIVERED ON: 

2 December 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes

ORDERS:

The application for leave to appeal is dismissed

.

CATCHWORDS:

APPEAL – APPLICATION FOR LEAVE TO APPEAL – residential tenancy matter – liability to pay water rates -

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, 143
Residential Tenancies and Rooming Accommodation Act 2008 (Qld) Form 18a

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Devries v Australian National Railways Commission (1993) 177 CLR 472
Drew v Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359
Felton and Anor v Raine and Horne Real Estate [2011] QCATA 330

Fox v Percy (2003) 214 CLR 118

International Professional Services v Tritone Nominees Pty Ltd [2011] QCATA 332
QUYD Pty Ltd v Marvass Pty Ltd  [2009] 1 Qd R 41
Robinson v Corr [2011] QCATA 302

Sali v SPC Limited (1993) 67 ALJR 841

APPEARANCES & REPRESENTATION:

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

1. The burning question is whether the appellants (`the Olivers’) owe the lessor of a home unit at Biggera Waters, Gold Coast, (`the premises’) an amount of $141.95 (including costs) for water charges allegedly incurred by the Olivers while they occupied those premises.

2. On 9 September 2018 the Olivers leased the premises from a person described as `Dong c/- Waterfront Management’[1] for the period 29 September 2018 to 28 September 2020. However, the tenancy was terminated by mutual agreement in July 2000.[2]

   [1]General Tenancy Agreement (Form 18a) 9 September 2018 Part 1 Cl 1.1 (`the lease’).

   [2]Decision recorded in transcript of hearing 10 November 2020 page 23 line 46 (`T’).

3. It appears that the person identified in the lease as simply `Dong’ is a Chinese national more formally known as Quiju Dong.[3] For present purposes, Dong’s duly authorised agent is the respondent Waterfront Management Pty Ltd (`the agent’).[4]

   [3]Gold Coast City Council rate notices dated 17 February 2020 and 10 August 2020; T page 20 line 32.

   [4]Lease Part 1 Cl 3.1, Part 3 agent’s signature.

4. According to a standard term of the lease, the lessor’s nominated agent may sue or be sued on behalf of the lessor, in the agent’s own name.[5] (This is the short answer to Mr Oliver’s contentions to the contrary.[6])

   [5]Lease Part 2 Cl 43(2).

   [6]T page 20 lines 32-33.

5. Other pertinent provisions of the lease appear in Part 1 Cl 12.2, and in Part 2 Cl 17 (water charges). The first of these provisions reads: `Is the tenant to pay for water supplied to the premises? See clause 17’. And the answer given is `Yes’.

6. These proceedings were commenced by the agent on 16 July 2020. A counterclaim was signed by the Olivers on 3 August 2020, but was not pursued at the hearing. Nor is it reagitated in the application for leave.[7]

   [7]Filed 7 December 2020.

7. The claims in dispute are itemised in the agent’s invoices to the Olivers dated 11 May 2020 and 8 June 2020 respectively.[8] It appears from material tendered by the agent that the appellants paid several earlier and somewhat higher charges for water usage without contention.[9]

   [8]Invoice 1302 for $84.05 and invoice 1383 for $30.95.

   [9]Eg  9 March 2020, 21 October 2019, 28 June 2019: Tenant Payment History from 29 September 2018 to 15 July 2020.

8. Nevertheless, the Olivers now contend that there is no acceptable evidence to support the two water usage claims in issue.[10] Amid some confused and confusing submissions it does not seem to be suggested that the amounts claimed have been falsified or inflated; indeed, on the contrary, the rates charged correspond exactly with the current rate set by the local authority.[11] There is no profit-taking.

   [10]T page 18 lines 35 ff.

   [11]T page 7 line 1; page 9 line 34; page 11 line 12; page 14 line 33; page 20 line 1.

9. The Olivers contend that the criminal standard of proof applies.[12] That is, of course, a fundamental error. According to the civil standard, the learned Adjudicator was clearly entitled to find, as he did,[13] that the agent correctly and reliably calculated the amounts in issue, by reference to information supplied by the local authority. There is no evidence, as distinct from bald assertions, to the contrary. The Adjudicator accepted the agent’s evidence as to the method of calculation, including water usage in the final, incomplete period of occupation. As judge of fact that was a decision that he was well entitled to take, and, as the High Court emphasises, it is not open to me, on an application for leave to appeal, to re-try a primary decision reasonably and properly made.[14] Questions of fact and credit are essentially matters for the trial judge[15], not for `second guessing’ by an appeals court.

   [12]T page 17 line 46.

   [13]T page 24 lines 20 ff.

   [14]Fox v Percy (2003) 214 CLR 118 at [28]-[29]; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479.

   [15]“That is his function”: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151 per Kirby P.

10. A party seeking leave to appeal must demonstrate a legally appellable error in the primary decision.[16] That is something that the present appellants have signally failed to do. It is not nearly enough for an applicant to express disappointment, or to entertain a subjective feeling that justice has not been done.[17] Indeed, the very requirement to obtain leave[18] to appeal is to preclude attempts to retry cases on the merits.

    [16]QUYD Pty Ltd v Marvass Pty Ltd  [2009] 1 Qd R 41; [2008] QCA 257 at [6]; Drew v Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359 at [18]; Felton and Anor v Raine and Horne Real Estate [2011] QCATA 330 at [19]; International Professional Services v Tritone Nominees Pty Ltd [2011] QCATA 332.

    [17]Robinson v Corr [2011] QCATA 302 at [7].

    [18]QCAT Act s 143(1).

11. Obscurely the first appellant asserted that, in some unexplained manner, the agent’s calculations were made unlawfully and in breach of unspecified legislation governing Gold Coast Council water meters, but several commendably patient attempts by the Adjudicator to discover a basis for this contention elicited nothing more informative than: `It doesn’t matter about the Act.  I will be using another section of the law that I have at home.’[19]

    [19]T page 21 line 30.

12. This application for leave to appeal a judgment for $141.95 is a baseless, if not frivolous use of the Tribunal’s resources, while more meritorious causes await a hearing.[20] No arguable ground for a successful appeal has been shown. Accordingly the application must be dismissed.

    [20]See the strictures of the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 217; Sali v SPC Limited (1993) 67 ALJR 841 at 843-844.

    ORDER

    The application for leave to appeal is dismissed.