Pihan v Sherman - [2023] QCATA 84

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Pihan v Sherman & Anor [2023] QCATA 84

PARTIES:

SUSAN PIHAN

(applicant/appellant)

v

JODHI MICHELLE SHERMAN
HAYDEN BRUSE SMITH

(respondent)

APPLICATION NO/S:

APL038-22

ORIGINATING APPLICATION NO/S:

MCD1547 -2021

MATTER TYPE:

Appeals

DELIVERED ON:

7 July 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

Leave to appeal is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – RESIDENTIAL TENANCY – where dispute about rent paid and electricity charges – where records of payments lacking – where findings of fact – whether any basis to disturb finding of fact as to rent and electricity charges paid by respondents.

Queensland Civil and Administrative Tribunal Act 209 s 143(3)(a)(i)

Rintoul v State of Queensland & Ors [2018] QCA 20

Terera v Clifford [2017] QCA 181

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

This is an appeal from a decision of the Tribunal dismissing the applicant’s claim for money payable by the respondent in respect of a residential tenancy matter.
In September 2020 the applicant, as lessor, and the respondents, as tenants, entered into a residential tenancy agreement in respect of premises at Helensvale. The tenancy was for a period of 12 months. The rent was $630/wk in addition to electricity costs. However, the electricity was not separately metered for the rental property. The electricity cost was calculated between the two houses on the property. At the conclusion of the tenancy there was a dispute about whether the respondents had short paid the applicant for rent and electricity charges. There was also a dispute about the costs of clearing/cleaning the waste water onsite septic system as a result of the respondents depositing foreign objects into the system.
The dispute could not be resolved so the applicant filed an application in the minor civil disputes jurisdiction claiming $720 for servicing of the septic system, $1,654.69 for electricity charges and $2,567.30 for arrears of rent. The respondents position was that no monies were owning for electricity or rent, and they had already paid for the servicing of the septic system because their young child put an excessive number of baby wipes down the toilet.
The matter came on hearing before a tribunal adjudicator. With respect to the rent, the applicant produced a “rental ledger” which was simply a schedule of what rent was paid by reference to a table of columns headed Date, Charge/Payments and Paid. The total of the Paid column was $35,050. In addition there was extra rental payable from the end of the tenancy, holding over rent of an extra $170/wk (in addition to the $630/wk) or $114.30/day. The total rental on the applicants case was $37,617,30 up to when the respondents vacated the premises.
A similar schedule was prepared for the electricity. It was up to the…

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.

Continue reading Pihan v Sherman

Details

AGLC: Pihan v Sherman [2023] QCATA 84
Case: [2023] QCATA 84
Decision Date: 7 July 2023

CaseChat Overview and Summary

The case of Pihan v Sherman involved a dispute concerning the amount of rent and electricity charges paid by the respondents to the applicant. The case was heard in the Supreme Court of New South Wales. The applicant, Pihan, sought to appeal against a decision made by a lower court that found in favour of the respondents, Sherman, on the basis of the amount of rent and electricity charges that were paid.

The legal issue before the court was whether there was any basis to disturb the findings of fact made by the lower court as to the amount of rent and electricity charges paid by the respondents. The court had to consider whether the lower court's findings were open to challenge on the basis that there were no records of the payments made, and whether the appeal was an appropriate remedy in the circumstances.

The court held that the appeal was not an appropriate remedy as there was no basis to disturb the findings of fact made by the lower court. The court found that the lower court had made findings based on the evidence presented before it, and that those findings were open to it on the evidence. The court also found that there was no evidence to suggest that the lower court had made an error in its findings. Accordingly, the court refused leave to appeal and dismissed the application. The lower court's decision stood.

Orders

Orders of the court

Leave to appeal is refused.

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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