Pitman v Marshall
[2014] QCATA 206
•25 July 2014
| CITATION: | Pitman v Marshall [2014] QCATA 206 |
| PARTIES: | Donald Pitman (Applicant/Appellant) |
| v | |
| Craig Marshall t/as All Coast Real Estate (Respondent) |
| APPLICATION NUMBER: | APL133 -14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Thomas, President |
| DELIVERED ON: | 25 July 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 5 March 2014 is set aside. 4. The Residential Tenancies Authority shall pay to Craig Marshall t/as All Coast Real Estate the sum of $191.65 and the remainder of the bond to Donald Pitman. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where special condition about pest control – where no evidence of pest control prior to tenancy – where lessor sought costs of pest control at end of tenancy – where tribunal interpreted pest control condition in favour of lessor – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32 Pickering v McArthur [2005] QCA 294, applied |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Mr Pitman rented a property through Mr Marshall. At the end of the tenancy, Mr Marshall had the property treated for pests at a cost of $245. He claimed that cost from Mr Pitman under a special condition in the tenancy agreement. A Magistrate, sitting as a member of the tribunal ordered that Mr Pitman pay Mr Marshall that cost.
Mr Pitman wants to appeal that decision. He says that the learned Magistrate erred in her interpretation of the special condition.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The principles the appeals tribunal applies when considering an application for leave to appeal are derived from numerous authorities, are to the effect that 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.[1]
[1][2005] QCA 294 at [3].
The tenancy agreement had two addenda of special conditions. The first addendum contained 12 special conditions; the second contained eight special conditions.
Under special condition 4, in the first addendum, Mr Pitman had to fumigate the tenancy as reasonably required if pets had been on the premises. He had to provide written evidence of compliance at the end of the tenancy. Mr Pitman told the learned Magistrate[2] that he did not have a pet on the premises. Therefore, he had no obligation to fumigate under Special condition 4.
[2]Transcript page 1-9, lines 44-46
The following condition appeared in the second addendum:
(1)The Tenant agrees at the end of the Tenancy, provided the Lessor has fulfilled its obligations under Standard Term clause 25 & Special Term Clause 1 of the Agreement generally and with respect to being free from vermin, to have the Premises pest controlled to a similar standard as provided by the Lessor/Lessor’s agent at the start of the tenancy. Ie/ treated by a licensed pest controller.
(2)The Tenant agrees to provide written evidence of compliance of this requirement to the Lessor/Lessor’s agent on or before vacating.
Mr Pitman argues that at the conclusion of the tenancy, the Special Condition meant he should only have to pay for treatments similar to those that the lessor carried out prior to his entering the property. He says there is no evidence that any such treatments were organised, took place, or were paid for.
The Special Condition is an odd way of saying, as Mr Marshall submitted,[3] that Mr Pitman had to have pest control done when he left the tenancy. If Mr Marshall wanted pest control done in any event, it would have been easy to say that.
[3]Transcript page 1-13, lines 17-19.
The learned Magistrate interpreted the clause as meaning that, as a minimum, Mr Pitman had to have the house treated by a licensed pest controller[4] but that he also had a higher duty to return the house to the standard existing at the start of the tenancy.
[4]Transcript page 1-16, lines 14.
A more logical interpretation of the phrase “to a similar standard as provided by the Lessor” must be that it provided an objective test as to the minimum pest control required by reference to what had occurred previously. The tax invoice from the pest controllers showed seven different treatments were available. The lessor may have commissioned all of these treatments, or none of them. If the lessor had the tenancy treated for cockroaches, Mr Pitman had to have the tenancy treated for cockroaches. If the lessor paid for treatments for cockroaches, ants and spiders, Mr Pitman had to pay for treatments for cockroaches, ants and spiders.
There was no evidence before the learned Magistrate that the lessor had any treatments done prior to Mr Pitman entering the tenancy. Mr Pitman told the learned Magistrate that he has not received any evidence of prior treatments.[5] Therefore, the lessor could not show the learned Magistrate that the “similar standard” included the treatments for which Mr Pitman was charged.
[5]Transcript page 1-11, lines 31-34.
The learned Magistrate erred in her interpretation of the special condition. Leave to appeal should be granted and the appeal allowed. The decision of 5 March should be set aside and the following order substituted:
The RTA pay to Craig Marshall t/as All Coast Real Estate the sum of $191.65 and the remainder of the bond to the Respondent.
Because the learned Magistrate’s order has already been executed, Mr Marshall should refund $245 to Mr Pitman.
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