Raven v Baxter
[2014] QCATA 176
•15 July 2014
| CITATION: | Raven v Baxter & Anor [2014] QCATA 176 |
| PARTIES: | Frank (Cliff) Raven (Applicant/Appellant) |
| v | |
| K Baxter (Respondent) |
| APPLICATION NUMBER: | APL564-13 |
| PARTIES: | Frank (Cliff) Raven (Applicant/Appellant) |
| v | |
| Jimboomba Real Estate (Respondent) |
| APPLICATION NUMBER: | APL565-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 15 July 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCIES – where competing claims for compensation – where tribunal set off tenant’s claim against lessor’s claim – whether grounds for leave to appeal Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 363, 506 Dearman v Dearman (1908) 7 CLR 549 |
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
On 6 May 2013, Mr Raven and his co-tenant Ms Deadman, filed an application for a reduction in rent. They also applied to set aside a notice to leave without grounds. At a hearing on 16 May 2013, the tribunal set aside the notice to leave and ordered that ‘for loss of amenities, the respondent is to adjust the rent ledger to reflect a weekly rental that is payable by the tenants in the sum of $273.75’.
The lessor was not represented at that hearing. On 31 May 2013, the lessor’s agent successfully applied to reopen the proceeding.
On 20 June 2013, the agent filed an application for compensation. The agent claimed $6,299.57 of which $972.86 was rent. Both applications were heard together on 11 July and 19 September 2013. The tribunal set aside the decision of 16 May 2013 and ordered Ms Deadman and Mr Raven pay the lessor compensation of $3,126.97.
Mr Raven wants to appeal that decision. He says the learned Adjudicator erred in fact and failed to apply the relevant law.
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 as summarised by Keane JA (as His Honour then was) in Pickering v McArthur[1]:
There are numerous authorities, in varying language but with unvarying emphasis, 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][2005] QCA 294 at [3].
The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[2] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[3]
[2]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[3]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
Mr Raven says that the learned Adjudicator did not take into account the provisions of s 506 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) 2008. That section says that a condition report signed by the tenant is evidence of the condition of the premises as at the date of the signature. Mr Raven submits this is relevant because the entry condition report shows the flyscreens were damaged yet the learned Adjudicator ordered that Mr Raven compensate the lessor for damaged flyscreens.
The entry condition report showed some, but not all, of the flyscreens were damaged. That is why the learned Adjudicator adjourned the hearing on 11 July 2013, so that the agent could obtain a tax invoice that distinguished between the different repair costs[4]. The agent provided a new tax invoice at the resumed hearing[5] which provided a breakdown of the costs. The original tax invoice was $1,358. The new tax invoice was $990, which covered repairs to the flyscreen and a new steel gate. The learned Adjudicator accepted the new tax invoice as a reasonable assessment of the cost of repairs.
[4]Transcript 11 July 2013, page 1-33, lines 11 – 13, 17-20; page 1-36, line 41 to page 1-37, line 2.
[5]Transcript 19 September 2013, page 1-3, lines 22 – 37.
Mr Raven says that the learned Adjudicator erred in ordering he pay compensation for the removal and replacement of the steel gates when the exit condition report shows that there was no damage to the gates. Mr Raven admitted that he removed a timber gate and that it required replacement[6]. The learned Adjudicator accepted the agent’s evidence that replacement was required. The evidence can support the learned Adjudicator’s finding and I have no reason to come to a different view.
[6]Transcript 11 July 2013 pages 1-6 to 1-9.
Mr Raven says the learned Adjudicator ordered $1,484 for rubbish removal whereas the invoice was only for $484. The transcript of 19 September 2013 makes it clear the learned Adjudicator only ordered $484[7] as does my calculation of the final order. There is no error in the learned Adjudicator’s decision.
[7]Transcript 19 September 2013, page 1-3, line 14.
Mr Raven says that the rubbish removed was not rubbish but his possessions that were removed contrary to the provisions of s 363 of the RTRA Act.
Section 363(2) of the RTRA Act states that the lessor may remove goods left at a tenancy if s/he believes that the market value of the goods is less than ($1,500). Mr Raven told the learned Adjudicator that the “rubbish” removed was his goods[8]. He did not tell the learned Adjudicator that his goods had a value of more than $1,500. He did not claim a breach of s 363 at the hearing. There was no evidence before the learned Adjudicator to suggest the goods did have a value of more than $1,500. The learned Adjudicator was not in error in failing to consider and apply s 363.
[8]Transcript 11 July 2013, page 1-18, line 42 to page 1-20, line18.
Mr Raven also says the learned Adjudicator wrongly set aside the initial compensation order in his favour.
That order was made by a different adjudicator without hearing from the agent. It was set aside on the reopening. At the end of the 11 July hearing, the learned Adjudicator noted Mr Raven’s claim and told him that he would take it into account in the final order[9].
[9]Transcript 11 July 2013, page 137, lines 30 – 32.
At the hearing of 19 September 2013, the learned Adjudicator acknowledged Mr Raven’s loss of amenity and found that a reduction of rent of $10 per week for 16 weeks was an appropriate amount for loss of amenity[10]. The evidence can support that finding and I can find no reason to come to a different view.
[10]Transcript 19 September 2013, page 1-2, lines 32 – 40.
There is no reasonably arguable case that the learned Adjudicator was in error. Leave to appeal should be refused.
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