Property Indulgence v Allen

Case [2020] QCATA 66

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Property Indulgence v Allen [2020] QCATA 66

PARTIES:

PROPERTY INDULGENCE

(appellant)

v

MICHAEL ALLEN

DOROTHY ALLEN

(respondents)

APPLICATION NO/S:

APL185-19

ORIGINATING APPLICATION NO/S:

MCDT 113/19

MATTER TYPE:

Appeals

DELIVERED ON:

27 April 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

1.   Leave to appeal granted.

2.   The appeal is allowed.

3.   The Tribunal’s decision of 13 June 2019 is set aside.

4.   The Tribunal substitutes its own decision as follows:

(a)   The Residential Tenancies Authority pay the bond of $1,400 as follows:

(i)   To the lessor – $279.50.

(ii)    To the tenants – $1,120.50.

(b)  The application is otherwise dismissed.

(c)   The counter-application is otherwise dismissed.

CATCHWORDS:

LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – OBLIGATIONS, PROHIBITED MATTERS AND PROTECTION FOR LESSEES – RENT – where tenants claimed compensation for flood event arising from burst pipe – where tenants did not claim within six months of becoming aware of breach – where claim out of time – where alternative claim under rent reduction regime did not apply – where lessor claimed compensation – where tenants entitled to bond, subject to any proven claim for compensation – where lessor required to file separate application or counter-application – where lessor did not – where findings of fact about condition of property at end of tenancy and damages awarded based on evidence adduced at hearing – where Tribunal has mandate to deal with matters fairly, quickly and economically – where party cannot seek to ‘shore up’ claims after the event

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – IN GENERAL – where applicant applied for leave to appeal – where applicant sought to introduce evidence not adduced at first instance – where applicant did not explain why it did not file its material before original hearing – where Tribunal must observe natural justice – where parties must be allowed to test evidence and present evidence in response – where tenant not given this opportunity – where Tribunal’s mandate to deal with matters fairly, quickly and economically is most acute in its minor civil disputes jurisdiction – where evidence should not be admitted – where Tribunal will not usually disturb findings of fact on appeal – where findings open on the evidence – where ground of appeal dismissed

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – other cases – where applicant applied for leave to appeal – where error of law in application of time limit – where Tribunal may set aside decision and substitute its own decision

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 28, s 143, s 146

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 94, s 417, s 419

Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39
Cachia v Grech [2009] NSWCA 232
Chambers v Jobling

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AGLC
Property Indulgence v Allen [2020] QCATA 66
Case
[2020] QCATA 66
Decision Date

CaseChat Overview and Summary

In the case of Property Indulgence v Allen, the dispute arose between a property manager, Property Indulgence, and tenants, Allen, regarding compensation for damage caused by a flood resulting from a burst pipe. The matter was heard by the Queensland Civil and Administrative Tribunal (QCAT) and later appealed to the Appeal Tribunal. The appeal involved multiple legal issues, including whether the tenants could claim compensation after the six-month statutory period had expired, the applicability of the rent reduction regime, and the procedures for introducing fresh evidence in appeals.

The Appeal Tribunal considered whether Property Indulgence could rely on new evidence to support its appeal. The Tribunal found that the new evidence, which included invoices, condition reports, correspondence, and photographs, was not admissible as it was not provided at the original hearing and the applicant failed to explain why it did not file the material before. The Tribunal emphasised the importance of observing natural justice and allowing parties to test evidence and present responsive evidence. It was held that the Tribunal should not admit new evidence unless it satisfies certain criteria, including being reasonably available at the time of the original hearing. The Tribunal also noted that it will not usually disturb findings of fact on appeal unless there is an error of law.

The Appeal Tribunal found that the original Tribunal had erred in law by applying the six-month time limit for claims of compensation. The Tribunal concluded that the error warranted setting aside the original decision and substituting its own. The Tribunal ordered that the Residential Tenancies Authority should pay the bond of $1,400, with $279.50 to the lessor and $1,120.50 to the tenants. The appeal was otherwise dismissed, and the counter-application was dismissed as well.

Orders

Orders of the court

1. Leave to appeal granted.

2. The appeal is allowed.

3. The Tribunal’s decision of 13 June 2019 is set aside.

4. The Tribunal substitutes its own decision as follows:

(a) The Residential Tenancies Authority pay the bond of $1,400 as follows:

(i) To the lessor – $279.50.

(ii) To the tenants – $1,120.50.

(b) The application is otherwise dismissed.

(c) The counter-application is otherwise dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

I will address the grounds of appeal below. Can Property Indulgence rely upon new evidence to support its appeal? Property Indulgence attached to its application for leave to appeal documents including invoices, condition reports, correspondence and photographs. Many, if not most, were not provided at the original hearing. To the extent that the documents are fresh evidence, they are not admitted. The Appeal Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce fresh evidence must satisfy three tests:(a)Could the parties have obtained the evidence with reasonable diligence for use at the trial? (b)If allowed, would the evidence probably have an important impact on the result of the case? (c)Is the evidence credible?[6][6]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408. Property Indulgence did not explain why it did not file its material before the original hearing. If Property Indulgence believed it was entitled to compensation, it should have filed its claim and supporting material before the original hearing. This did not escape the learned Justices, who had cause to admonish Property Indulgence for this very reason:[7][7]Transcript, page 1-8, lines 24-36; page 1-9, lines 6-46; page 1-10, lines 1-23.TRIBUNAL JP 1: Well, for a start tell us how you rook [sic] the $1400 and on what basis and what justification. And the second thing, tell us if you’re going to give us a list of stuff that you did take for the bond – why you didn’t put a response in on this claim.MS BRADLEY: A response on - - - TRIBUNAL JP 1: Yes, a response to this claim. Why didn’t you put a response in? Because I’m sure you’re going to come up with $1400 worth of expenses because you’ve taken the bond. Surely, you would have put that in beforehand so that we would have looked at and said, “Yes, that looks reasonable”, but instead you’re going to table it now, aren’t you?MS BRADLEY: Well, I didn’t realise that I had to do a counterclaim for it.…TRIBUNAL JP 1: Right. And our point, having discussed it and reviewed the file, is that you should have put a response in. And you know that because you’re a property manager and you’re a specialist. All right. So you’re going to tell us that you have $1400 – I assume, $1400, probably more, that you want to be offset against this claim that is being made here today. Is that right?MS BRADLEY: What do we need in total? Was – we only claimed the 1400.TRIBUNAL JP 1: So you don’t have any other claims other than $1400.MS BRADLEY: That’s correct.TRIBUNAL JP 1: Okay.MS BRADLEY: We claimed the bond, as Michael has said, yes, as a – it’s a step that we take when we do a vacate that doesn’t look like it’s up to scratch.TRIBUNAL JP 2: Yes okay. TRIBUNAL JP 1: Well, I would suggest that that might be something you might have a serious think about, because you’re claiming an expectation of expenses which may not occur. Right. You are saying “I’ll take the lot and then we’ll worry about filling in the detail later.” I’m sorry, but that’s – not only is it unacceptable, it’s illegal. You must claim the bond for expenses you’ve incurred. Now, if you lodge that bond claim on the afternoon, as Mr Allen has said, then you incurred no expenses at that time against that bond.TRIBUNAL JP 2: We have the photos here. You haven’t tabled an invoice with any of this.MS BRADLEY: Yes, we do have invoices that go with it. There’s a cleaning invoice, a yard maintenance invoice, the rubbish removal invoice and the flea and tick invoice.TRIBUNAL JP 1: So you’ve got three copies?MS BRADLEY: Unfortunately, no, I don’t. You can have these if you wish.TRIBUNAL JP 2: Have you seen these before, Mr Allen?MR ALLEN: No, your Honour.TRIBUNAL JP 2: You haven’t received any information to that effect - - -MR ALLEN: No.TRIBUNAL JP 2: - - - justifying the $1400?MR ALLEN: No.TRIBUNAL JP 1: Have a look at each of them.TRIBUNAL JP 2: Have a look at each of them for us.TRIBUNAL JP 1: Ms Bradley, are you the dealer principal for the Property Indulgence?MS BRADLEY: No, I am not.TRIBUNAL JP 1: Right. Okay. You might want to have a discussion with your dealer principal when you get back about the issues that are going to be raised here today, because that it unsatisfactory: totally unsatisfactory. You cannot do what you have just done. And I’m about to consider – to adjourn the matter so we can consider what you have done and what we will do about it. Right. You are treating this tribunal very lightly: very lightly. You are not giving this person over here a fair go with what you’re claiming.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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