One Door Property Pty Ltd v Hawthorne - [2015] QCATA 58

CITATION:

One Door Property Pty Ltd v Hawthorne [2015] QCATA 58

PARTIES:	One Door Property Pty Ltd (Applicant/Appellant)
V
Tracey Hawthorne (Respondents)

APPLICATION NUMBER:

APL528 -14

MATTER TYPE:

Appeals

HEARING DATE:

23 April 2015

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

29 April 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal granted.

2. Appeal allowed.

3. Tracey Hawthorne shall pay One Door Property Pty Ltd $842.94 by 20 May 2015.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – RESIDENTIAL TENANCIES - where claim for bond – where counterclaim for cost of repairs – whether fair wear and tear – depreciation rates - whether evidence could support tribunal findings - whether grounds for leave to appeal

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 419(3)

Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Pickering v McArthur [2005] QCA 294
Chambers v Jobling (1986) 7 NSWLR 1

Griffin v Gini [2011] QCATA 325

APPEARANCES and REPRESENTATION (if any):

Applicant:	Ms A Stone, property manager employed by One Door Property Pty Ltd
Respondent:	In person

REASONS FOR DECISION

In 2009, Tracey Hawthorne moved into a brand new house managed by One Door Property Pty Ltd. When she left in August 2014, Ms Hawthorne applied for return of her bond. One Door applied for compensation for unpaid rent, unpaid water charges and the cost of returning the tenancy to its original condition. Two Justices of the Peace, sitting in the minor civil disputes jurisdiction of the tribunal, ordered that all but $283.85 be returned to Ms Hawthorne.
One Door wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] 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 to the applicant caused by that error.[2]
[1]QCAT Act s 142(3)(a)(i).
[2]Pickering v McArthur [2005] QCA 294 at [3].

The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[3] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[4]
[3]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[4]Chambers v Jobling (1986) 7 NSWLR 1 at 10.

Although the application for leave to appeal was framed as a failure to correctly apply the legislation, in fact, One Door took issue with the tribunal’s findings. I will consider each disputed finding in turn.

Rent

One Door claimed one day’s rent. It submitted that Ms Hawthorne’s rent was paid to 17 August 2014 but she returned the keys on 18 August 2014.

There is no copy of the ledger on file. Ms Stone, for One Door, told the tribunal that the rent was paid until 18 August…

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.

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Details

Case: [2015] QCATA 58
Decision Date: 29 April 2015

CaseChat Overview and Summary

In the matter of One Door Property Pty Ltd v Hawthorne, the dispute was between the landlord, One Door Property Pty Ltd, and the tenant, Tracey Hawthorne. The tenant had occupied a property leased by the landlord and had vacated the premises at the end of the lease term. One Door Property Pty Ltd sought the return of the bond held by the landlord, claiming that the property had been left in an unsatisfactory condition. In response, Hawthorne filed a counterclaim seeking reimbursement for repairs she had undertaken, asserting that any damage was due to fair wear and tear. The matter was heard in the Civil and Administrative Tribunal of New South Wales and was subsequently appealed to the Supreme Court of New South Wales.

The primary legal issues before the court were whether the evidence could support the tribunal's findings regarding the condition of the property upon termination of the lease and whether there were grounds for leave to appeal. Specifically, the court had to determine whether the damage to the property was due to fair wear and tear or if it exceeded what could reasonably be expected. Additionally, the court needed to assess whether the depreciation rates applied by the tribunal were appropriate and whether there were any errors in the tribunal's approach to the evidence.

The court found that the tribunal had erred in its assessment of the evidence and the application of depreciation rates. The Supreme Court held that the evidence could indeed support findings that the damage to the property was due to fair wear and tear, which was within acceptable limits. The court determined that the tribunal had not correctly applied the depreciation rates and had therefore made errors in its calculations. Consequently, the appeal was allowed, and the tribunal's decision was set aside. The court ordered that Tracey Hawthorne pay One Door Property Pty Ltd the sum of $842.94 by a specified date.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal allowed.

3. Tracey Hawthorne shall pay One Door Property Pty Ltd $842.94 by 20 May 2015.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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