Ramsay v Fraser

Case [2024] QCATA 72

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Ramsay v Fraser [2024] QCATA 72

PARTIES:
REBECCA RAMSAY

(appellant)

v
CINDY FRASER

(respondent)

APPLICATION NO:

APL007-23

ORIGINATING APPLICATION NO:

MCDT1794 of 2022

MATTER TYPE:

Appeal

DELIVERED ON:

10 July 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member PG Stilgoe OAM

ORDERS:

1.    Leave to rely on fresh evidence is refused.

2.     Leave to appeal is granted and the appeal is allowed.

3.     Cindy Fraser shall pay Rebecca Ramsay the amount of $1,240.50, comprised of:

(a)     $873.50, being the costs of cleaning and turf restoration; and

(b)     $367.00, being the filing fee paid for the application for leave to appeal.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where tenant applied for directions concerning the release of rental bond – where lessor made claims for cleaning and lawn repair on rental property – where Tribunal dismissed claims as the lessor had not sustained financial loss – where lessor had not engaged cleaner or lawn repairer due to insurance repairs taking place on property – where insurance works were required due to damage sustained during tenant’s tenancy – where lessor was unable to re-let the property to mitigate losses – whether the Tribunal erred in denying the claims for cleaning and lawn repair

Queensland Civil and Administrative Tribunal Act 2009, s 13, s 32, s 39, s 142, s 147

Residential Tenancies and Rooming Accommodation Act 2008, s 24, s 188, s 206, s 248, s363, s 420,
Residential Tenancies and Rooming Accommodation Regulation 2009 (Qld) r 23, r 24

Brown and Anor v Noosa Constructions Pty Ltd [2012] QCATA 194
Chambers v Jobling (1986) 7 NSWLR 1
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
Corcoran v Simon [2016] QCATA 109
Dearman v Dearman (1908) 7 CLR 549
Eising v Westgarth Realty Pty Ltd [2019] QCATA 120
Fox v Percy (2003) 214 CLR 118
Griffin v Gini [2011] QCATA 325
Hobbs v PGK Pty Ltd [2018] QCATA 156
House v The King (1936) 55 CLR 499
Johnson v Perez (1988) 166 CLR 351
Lovell v Lovell (1950) 81 CLR 513
Pickering v McArthur [2005] QCA 294
Spedding Estates Pty Ltd as trustee for The Spedding Family Trust t/as Summergrove Estate v Reid No 2 [2023] QCATA 117

Stockdale & Leggo v Gordon [2017] QCATA 112

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

  1. Cindy Fraser rented a property from Rebecca Ramsay. At the end of the tenancy, Ms Ramsay claimed that Ms Fraser failed to leave the property in the same state it was in at the start of the tenancy. She filed a claim for $1759.70, being the sum of the rental bond and an additional $199.70.

  2. The Tribunal ordered that $755.50 be refunded to Ms Ramsay,…

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Details
AGLC
Ramsay v Fraser [2024] QCATA 72
Case
[2024] QCATA 72
Decision Date

CaseChat Overview and Summary

In the matter of Ramsay v Fraser, the applicant, Rebecca Ramsay, sought directions concerning the release of a rental bond from her former landlord, Cindy Fraser. Fraser had made claims for cleaning and lawn repair on the rental property, which the Tribunal dismissed as Fraser had not sustained financial loss. Fraser had not engaged a cleaner or lawn repairer due to insurance repairs taking place on the property, which were required because of damage sustained during the tenant's tenancy. Fraser was also unable to re-let the property to mitigate losses. The primary issue before the court was whether the Tribunal erred in denying Fraser's claims for cleaning and lawn repair.

The court considered whether Fraser's claims were denied due to a misunderstanding of the law or an error in the application of the law. The court found that the Tribunal did not err in denying Fraser's claims for cleaning and lawn repair. The Tribunal correctly found that Fraser had not sustained a financial loss as she had not engaged a cleaner or lawn repairer due to insurance repairs taking place on the property. The court also found that Fraser was unable to re-let the property to mitigate her losses, which further supported the Tribunal's decision. The court held that the Tribunal's decision was not an error of law and therefore could not be appealed.

The court granted leave to appeal and allowed the appeal. The court ordered that Fraser pay Ramsay the amount of $1,240.50, which comprised of the claimed costs of cleaning and turf restoration, and the filing fee paid for the application for leave to appeal. The court refused leave to rely on fresh evidence. The court's decision highlights the importance of proving financial loss in rental bond disputes and the need for landlords to take reasonable steps to mitigate their losses.

Orders

Orders of the court

1. Leave to rely on fresh evidence is refused.

2. Leave to appeal is granted and the appeal is allowed.

3. Cindy Fraser shall pay Rebecca Ramsay the amount of $1,240.50, comprised of:

(a) $873.50, being the costs of cleaning and turf restoration; and

(b) $367.00, being the filing fee paid for the application for leave to appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Leave to rely on fresh evidence is refused. Leave to appeal is granted and the appeal is allowed. Cindy Fraser shall pay Rebecca Ramsay the amount of $1,240.50, comprised of:(a) $873.50, being the claimed costs of cleaning and turf restoration; and(b) $367.00, being the filing fee paid for the application for leave to appeal.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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