Quaresmini v Huang - [2024] QCATA 53

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Quaresmini v Huang [2024] QCATA 53

PARTIES:

LAURENCE QUARESMINI

(respondent/appellant)

v

YU-YIN HUANG

(applicant/respondent)

APPLICATION NO/S:

APL296-22

ORIGINATING APPLICATION NO/S:

MCDT 1065/22 Brisbane

MATTER TYPE:

Appeals

DELIVERED ON:

14 May 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Bertelsen

ORDERS:

1. Leave to appeal is refused

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where applicant sought recovery of loss of rent and loss due to damage alleged to have been caused during rental period – where respondent sought recovery in Supreme Court of trucks machinery and equipment post tenancy – where consideration of claims arising out of the tenancy and identifiable at vacate are separate and distinct from claims arising post tenancy – where post tenancy claims subject to Supreme Court orders – jurisdiction of Tribunal not inhibited by separate Supreme Court orders

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i)

Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
Cachia v Grech [2009] NSWCA 232

Pickering v McArthur [2005] QCA 294

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

On 21 April 2022 the original applicant Yu-Yin Huang filed an application for minor civil dispute – residential tenancy dispute seeking $19,306.00 on account of unpaid rent, water service charges, large machinery removal, site clean-up and QCAT application fees (‘the compensation claim’) from Laurence Quaresmini the original respondent in respect of his former tenancy of premises 108 Dakar Road Algester (‘the premises’).
On 29 August 2022 the Tribunal determined the residential tenancy dispute application finding:
(a)The Respondent pay to the Applicant the sum of $9,794.00 within seven days.
(b)The Applicant has liberty to reapply for a date before the presiding Adjudicator.
On 26 September 2022 Mr Quaresmini filed an application to stay the Adjudicator’s decision of 29 August 2022. The stay was refused on 15 November 2022. On 6 October 2022 Mr Quaresmini filed an application for leave to Appeal or Appeal to overturn and strike out the decision made on 29 August 2022, reopen the matter to be reheard and allow him additional submissions. This decision determines that application.
Historically Mr Quaresmini was a tenant at 108 Dakar Road Algester initially pursuant to a general tenancy agreement for the period 8 October 2018 to 8 February 2020. The rent was $480.00 per week with a bond of apparently $1,920.00 paid to the Residential Tenancies Authority (‘RTA’). A rent increase to $550.00 per week was to take effect from 26 April 2021.
An application for termination of the tenancy was made resulting in a termination order by the Tribunal on 13 December 2021. The tenancy was terminated on 27 December 2021 with a warrant of possession to take effect on the 28 December 2021. Eviction subsequently took place on the 17 January 2022. The termination order was appealed and dismissed on the 20 April 2022.
Ms Huang’s compensation claim filed 21 April 2022 initially came before the Tribunal on the 4 August 2022. The day prior, 3 August 2022, Mr Quaresmini had filed an Application for Miscellaneous Matters seeking an adjournment stating that delivery to his mailbox was only effected on Friday 29 July 2022 and that he ought to be afforded 28 days to file a response. Additionally, Mr Quaresmini asserted that an application he had made to the Supreme Court concerning property remaining at the premises after eviction on 17 January 2022 was relevant in that orders made in the Supreme Court showed Ms Huang had “violated court orders”.

Mr Quaresmini’s Supreme Court Application

On 3 February 2022 Mr Quaresmini filed an originating application in the Supreme Court (SC1380/22) seeking urgent access to the premises for Mr Quaresmini to remove all his belongings including access to heavy transportation vehicles, two forty-foot shipping containers and valuable contents, two large prime movers and other items listed. On 15 February 2022 Justice Applegarth ordered that Mr Quaresmini be allowed access to inspect and remove goods over three specific days. Consequent on a further application filed in the Supreme Court on the 21 February 2022 by Mr Quaresmini and to remove doubt Justice Applegarth further ordered on 24 February 2022 that specific items of property remaining on site vest in Ms Huang; that Mr Quaresmini collect a trailer registration number YQ53FS from Gray’s storage at Hamilton Brisbane; that otherwise both applications be dismissed with Mr Quaresmini to pay costs.
Subsequently Mr Quaresmini appealed that decision and on 29 July 2022, their Honours McMurdo, Bond and Davis ordered the Appeal be allowed and that orders vesting specific items in Ms Huang be set aside, and confirming Mr Quaresmini’s collection of the trailer registration number YQ53FS. Ms Huang was ordered to pay Mr Quaresmini’s costs of the appeal with an application to adduce further evidence before the Court of Appeal being refused.
Subsequently on 17 August 2022 Mr Quaresmini made a further application to the Supreme Court to file an amended originating application seeking a list of Mr Quaresmini’s property remaining at the premises and a list of property disposed. That application was accompanied by a second further amended notice of appeal. At the time of hearing of the Minor Civil Dispute claim on 29 August 2022 that application/appeal had not been dealt with.

Reverting to the Tribunal’s minor civil dispute tenancy compensation claim

On 4 August 2022 when the compensation claim initially came before the Tribunal it was ordered that:
(a)The Respondent will within seven days, that is, by 4pm on 10 August 2022, file and serve by email a numbered bundle of all documents which he seeks to rely on at the hearing of this matter.
(b)The Applicant will upon 7 days, that is, by 4pm on 17 August 2022 file and serve by email a reply to the above and a numbered bundle of any documentation that they seek to rely on at the hearing of this matter.
(c)No further documentation will be considered at the hearing other than the above.
(d)There shall be no further adjournment of this matter.
(e)Adjourned before Adjudicator at 11am on 29 August 2022.
Mr Quaresmini did not file any bundle of documents by 10 August 2022. Rather on 12 August 2022 he filed an Application for Miscellaneous Matters seeking removal of the presiding Adjudicator. That application was refused on 23 August 2022. At 11.56 pm on Sunday 28 August 2022 Mr Quaresmini filed what he termed submissions which included numerous photos, material filed in the Supreme Court, lawyers’ correspondence apropos the Supreme Court proceeding, a Form 7 Tribunal Response and an Application for Miscellaneous Matters seeking an adjournment for the reason that:
This matter is directly related to the pre-existing ongoing Supreme Court matter of 1380/22 which is due to be heard on 31/08/22 after a favourable appeal decision was received on 27 /07/22. 1380/22 has been an ongoing matter since February 2022.
In his schedule of response Mr Quaresmini stated:
(a)Matters involving property remaining at the premises were being dealt with in the Supreme Court proceeding due to be heard on 31 August 2022. Ms Huang was claiming costs for removing large machinery from the premises. One of the trucks removed was taken to and sold by auction at Gray’s Online and no sale receipt had been disclosed.
(b)Rent increases were never mutually agreed to. They were designed to impose difficulties on him and drive him away. Maintenance and repair requests were ignored.
(c)In particular, installation of proper stormwater drainage was necessary at the premises’ rear extension otherwise the rear extension would flood.
(d)No documentation produced regarding water efficiency. No request for payment of water invoices.
(e)Claim for clean-up of the yard based only on a quote. Claim intended to gouge costs without intending to engage the works.
(f)The septic system installation in September 2021 left mounds of soil in the backyard not created by Mr Quaresmini.
Initially at the hearing on 29 August 2022 Ms Huang withdrew her third claim item “removal of large machinery” viewing that as a matter to be dealt with in the Supreme Court. She confirmed that $3,198.00 was unpaid rent according to the rental ledger after the RTA bond refund was credited towards rent. With respect to site cleanup Ms Huang relied on quotes for such work and photographic evidence depicting the appalling state of the property at vacate.
Mr Quaresmini stated “this is tied with the Supreme Court and a lot of the stuff relevant to this is to do with the Supreme Court” asserting that over $100,000.00 of his gear had been taken and sold. As for unpaid rent Mr Quaresmini said the premises had flooded and equipment was lost. He had only limited use of the premises and the rent was increased. With respect to site cleanup Mr Quaresmini said he had the premises cleaned up; that clean-up was consequent on sewerage system replacement involving digging up the whole backyard; that complaints during the course of the tenancy went unheeded.
The Adjudicator pointed out that the claim for water service charges was out of time and went on to determine that with respect to site clean-up only one half would be dealt with at hearing with the other half to be dealt with when a detailed invoice for all clean-up work supported by a contractor’s statement was produced.
Mr Quaresmini objected stating.
I can’t see how you can possibly say that I’ve got to clean the place up when -when we’ve offered to clean it up. ……...they haven’t given us a right to clean it up or remove our gear.

Conclusions

When the minor civil dispute compensation claim came before the Tribunal on 4 August 2022 Mr Quaresmini’s assertion that service was only effected on 29 July 2022 was, it seems, not accepted by the Adjudicator. Rather orders were made that Mr Quaresmini file documentation by 10 August 2022 with Ms Huang to respond by 17 August 2022. Mr Quaresmini did not take issue with those orders as in, for instance, appealing. Rather he chose to object to the Adjudicator in question hearing the Application. The objection was disallowed. In those circumstances it is not open to Mr Quaresmini latterly to assert after the Adjudicator’s decision of 4 August 2022 but more particularly after the Adjudicator’s decision of 29 August 2022 any lack of fairness. Even if it could be construed initial service took place on 29 July 2022 the filing of a response and other documentation at 11.56 pm on 28 August 2022 places the response in particular outside Mr Quaresmini’s asserted twenty-eight-day period to respond. That would have been 26 August 2022, some three days prior to the hearing date. The filing of documentation including the response at 11.56 pm on Sunday 28 August 2022 together with an application for adjournment appears to be more likely designed to extract an adjournment the following day perforce of some preconceived notion that the Supreme Court proceeding was somehow inextricably linked to and would affect the outcome of the tenancy compensation claim as well as likely objection to late filing by Ms Huang.
Ms Huang’s compensation claim was always about matters that arose during the tenancy. At hearing the Adjudicator accepted the rent ledger and evidence in respect of arrears of rent at $3,198.00. The Adjudicator did not accept water bills because they were out of time. It was not necessary to address whether the property was water efficient or not. The Adjudicator accepted one of the two clean up quotes produced which was valid as at the date of hearing. Under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) the Adjudicator was entitled to make those findings based on the evidence before the Tribunal.
Mr Quaresmini was obliged to leave the property in the same state and condition as at tenancy commencement, fair wear and tear excepted. He had ample opportunity at the time of vacate to clean up and remove his machinery trucks and equipment.
In his response Mr Quaresmini referred to removal of that machinery trucks and equipment as matters being dealt with in the Supreme Court. He said rent increases were not agreed to. He could have contested any rent increase at the time but did not. No evidence was produced. The Adjudicator was entitled to rely on the rent ledger. Mr Quaresmini claims flooding occurred but there is no flood claim damage before the Tribunal. In any event any such a claim would have to have been made at or about the time of flood damage occurring. Water efficiency was referred to but, in the event, was not allowed. Mr Quaresmini said cleaning up cost was based on a quote. There is nothing out of the ordinary about that, if for no other reason, than owners facing big clean up bills do not necessarily have the wherewithal to pay out of their own pockets. Compelling photographic evidence of the necessity to clean up was produced. Additionally, Mr Quaresmini’s objection “they haven’t given us a right to clean up or remove our gear” is nonsensical. The tenant’s obligation at tenancy end is to return the property to its state at commencement, fair wear and tear excepted.
Finally, there was no evidence the asserted mounds of soil left consequent on installation of a septic system formed part of any clean-up cost. The clean-up quote adopted by the Adjudicator only refers to, amongst other things, removal of fill (dirt) dumped on the block not any mounds of dirt created on the block.
Post tenancy issues did not feature in the Adjudicator’s conduct of the proceeding below and quite rightly so as they were already the subject of orders and appeal orders in the Supreme Court. The Adjudicator correctly confined himself to those issues within jurisdiction namely rent and the state of the property as at the date of vacate. The bulk of Mr Quaresmini’s material dealt with his Supreme Court proceeding. He never did properly address the Adjudicator’s two findings at hand namely the rent and state of the property at vacate.
In summary, the Adjudicator’s findings were within jurisdiction at the time. The Adjudicator correctly allowed unpaid rent, partial clean-up cost and filing fee at $9,794.00. To be clear the Supreme Court proceeding has dealt with/deals with issues about misappropriation, misuse and even alleged stealing of machinery trucks and equipment post tenancy. It is not within the purview of the Tribunal to be involved in matters before the Supreme Court nor would it be the case, one would surmise, for the Supreme Court to have any desire to be involved in a Tribunal tenancy application or an appeal at first instance within the Tribunal. Both subject matters are separate and distinct.
Leave to appeal will not be granted where a party simply desires to reargue the case on existing or additional evidence. A clear purpose of the requirement for leave before a party has the right to appeal is to prevent any attempt to simply conduct a retrial on the merits of the case. An application for leave to appeal is not, and should not be, an attempt to reargue a party’s case at the initial hearing.
Leave to appeal will only ordinarily be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage;[1] or there is a reasonably arguable case of error in the primary decision and a reasonable prospect that Mr Quaresmini would obtain substantive relief.[2] Another question sometimes asked is: is leave necessary to correct a substantial injustice to the appellant, caused by some error?[3]
[1]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389
[2]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; Cachia v Grech [2009] NSWCA 232 at 2.
[3]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; Pickering v McArthur [2005] QCA 294.
Here there is no question of general importance, no public advantage nor any error in the Adjudicator’s decision. The evidence was capable of supporting the Adjudicator’s conclusions.
The Appeal Tribunal’s order is that leave to appeal be refused.