Pollock v Howard-Jones
[2011] QCATA 143
•21 June 2011
| CITATION: | Pollock v Howard-Jones [2011] QCATA 143 |
| PARTIES: | Miss Kate Pollock |
| v | |
| Mr Brian Howard-Jones |
| APPLICATION NUMBER: | APL321-10 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 21 June 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal is refused. |
| CATCHWORDS: | Minor Civil Dispute – where Tribunal considered the merits of the case – applicant failed to cooperate with the respondent in calculating outstanding rent – whether error established Queensland Civil and Administrative Tribunal Act 2009, ss 3, 28(2), 142(3) Cachia v Grech [2009] NSWCA 232 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Miss Pollock entered into a Rooming Accommodation Agreement with University Village at Parkwood with the respondent. The tenancy commenced on 21 January 2010 and was to expire on 31 December 2010. The rental was $195 per week. She was to take up residency in room 17C but through some arrangement with a other tenant, she occupied room 17A and the other tenant occupied room 17C.
She decided to leave the Village in early May 2010 and to facilitate that, somewhat ingenuously, gave a Notice to Remedy Breach which was dated the day she left. Apparently she had made arrangements with another tenant to move into a unit purchased by that other tenant’s parents. The notice of intention to leave was given on 7 May 2010, presumably the same date as the notice to remedy breach although it had been back dated to 2 May 2010 as found by the learned adjudicator.
As a consequence of her breaking the agreement, the respondent brought an application to recover arrears of rent from 13 May 2010 to 2 June 2010 (20 days) $557.14, carpet cleaning of $100.00, general cleaning of $50.00, and relet fee of $214.50. The total claim brought less a bond of $270.00 was $651.64.
When the matter came on for hearing before a tribunal adjudicator, Mr Pollock, the applicant’s father, without prior notice to the respondent presented evidence which disputed the amount of the outstanding rent. In fact, it was contented that there was a rental over payment of $390.00. The learned adjudicator, quite rightly, was critical of the approach taken by Mr Pollock in that he was purposely taking the respondent’s representative by surprise in challenging the rent by using bank statements that could have easily been produced to the respondent in a timely fashion before the hearing. In fact, he candidly said he took this approach to ensure that the respondent was taken by surprise at the hearing. The $390.00, it was contended had been received by the respondent but credited to another tenant’s account and not the account of Miss Pollock.
The learned adjudicator considered all of the evidence that was put before her, and gave detailed reasons subsequent to the hearing. Those reasons address the issues raised by Mr Pollock in that given the confusion over the change of rooms between Miss Pollock and her friend (from 17C to 17A) the rental payment was not credited to Miss Pollock. To that end, the learned adjudicator said:
“I am therefore satisfied that the attitude and position taken by the respondent and her father have in fact caused their own demise in having lost those rental monies and I am not entirely satisfied that the applicant could have done anything other than receive the monies pursuant to the reference noted by the tenant herself. I am also not satisfied that the applicant should make any payment towards the tenant for the reimbursement of rent as, despite the fact that the tenant moved out on 7 May 2010, I am satisfied that her obligation for rent continues under the agreement and in fact that she is required to pay rent up until 2 June 2010 when I accept, on the evidence on the Applicant, that is when a new tenant was found to take over the lease agreement”.
Ultimately, the learned adjudicator made an order that Miss Pollock pay to the Respondent $651.64 which was a fair result and consistent with the substantial merits of the case.[1]
[1] QCAT Act, section 28(2).
Subsequent to that decision, on 22 November 2010 Miss Pollock filed an application for leave to appeal or appeal. She contends in that application that “the court order was to pay the Applicant the sum of $651.64 which did not take into account to 2 weeks rent receipted to other tenants, totalling $390.00, therefore the total amount owing should be $651.64 minus $390.00 for rent unaccounted for, equals $261.64”.
As this is an appeal from a decision in the minor civil dispute jurisdiction, leave to appeal is necessary[2]. In an application for leave to appeal the Applicant must show that there has been some error on the part of the primary decision maker, there is a prospect that the Applicant will obtain substantial relief[3]. Is leave necessary to correct a substantial injustice to the applicant caused by some error?[4] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[5]
[2] QCAT Act, section 142 (3).
[3] Cachia v Grech [2009] NSWCA 232 at [13].
[4] QUYD Pty Ltd v Marvass Pty Ltd (2009) 1 Qld R 41.
[5]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
In conducting a hearing in the Tribunal, the learned adjudicator must have regard to the objects of the Act[6] and the manner in which proceedings are conducted to insure that the Tribunal acts fairly according to the substantial merits of the case[7].
[6] QCAT Act, section 3.
[7] QCAT Act, section 28 (2).
Although in this case, it does seem that there may have been some misapplication of rental monies, the fault of that, it seems as found by the learned adjudicator, lies entirely with the Miss Pollock and not the respondent. The Tribunal was not prepared to accept that any fault lay with the respondent in the circumstances of this case and that was a judgment made by the learned adjudicator upon which she had very good grounds to make. Had the applicant cooperated with the respondent in the early stages of this dispute, all matters could have been adequately resolved. In acting fairly and according to the substantial merits of the case, the learned adjudicator decided that the arrangements made between Miss Pollock and her friend, and the fact that when the rent was paid it was nominated to be paid to room 17A, created confusion which was not the fault of the respondent. That conclusion was open to her on the evidence.
The learned adjudicator gave consideration to all relevant factors in coming her decision and in doing so, no error has been identified by the Applicant and nor is any error demonstrated from perusal of her reasons nor the transcript of evidence. In the circumstance leave to appeal is refused.
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