Ray White Holland Park v Zagami - [2019] QCATA 110

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Ray White Holland Park v Zagami [2019] QCATA 110

PARTIES: YES ESTATE AGENTS PTY LTD T/AS RAY WHITE HOLLAND PARK

(appellant)

v

CHRIS ZAGAMI

(respondent)

APPLICATION NO/S:

APL143-18

ORIGINATING APPLICATION NO/S:

MCDT385/18 (Brisbane)

MATTER TYPE:

Appeals

DELIVERED ON:

29 July 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:
1.   The Appellant’s name in the record of the Appeal Tribunal is amended to ‘Yes Estate Agents Pty Ltd t/as Ray White Holland Park’.

2.   Leave to appeal is granted.

3.   The appeal is allowed.

4.   The order made by the tribunal on 20 June 2018 in MCDT385/18 (Brisbane) is set aside.

5.   The application is remitted to the tribunal to be heard in the Minor Civil Dispute list by a different decision maker on a date to be fixed.

CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where in a bond claim the Adjudicator refused to take into account the lessor’s documentation for various reasons – whether error of law

LANDLORD AND TENANT – COVENANTS TO REPAIR – MEASURE OF DAMAGES FOR BREACH – where cleaning and repairs may have been done by the lessor using his own labour at the end of the tenancy – whether the lessor can claim the value of this work as compensation from the tenant – manner of assessment

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 43

Dimond v Lovell [2002] 1 AC 384

Powercor Australia Ltd v Thomas [2012] VSCA 87

Stockdale & Leggo v Gordon [2017] QCATA 112

REPRESENTATION:

Appellant:

Represented by the property manager

Respondent:

Self-represented

APPEARANCES:

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

This is an appeal from a decision of an Adjudicator in a residential tenancy matter. Chris Zagami was the tenant of rental premises. When his tenancy ended there was a dispute about the rental bond and he applied to the tribunal to have the dispute determined. He accepted in his application that he owed $221.43 in rent at the end of the tenancy. But he asked for the remainder of the bond of $3,100 to be paid to him.
The matter was heard by an Adjudicator on 20 June 2018. At the hearing the lessor was represented by a property manager as agent. The Adjudicator decided that the tenant was entitled to the whole of the remainder of the bond and made a decision accordingly.
The appeal is brought by the agent on behalf of the lessor on these grounds:-[1]
(a)The Adjudicator failed to request evidence from the tenant to substantiate any claims made by the tenant regarding the damages to the property noted during the vacate inspection and completion of the required flea treatment to be completed at the end of the tenancy.
(b)The Adjudicator failed to accept evidence,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] QCATA 110
Decision Date: 29 July 2019

CaseChat Overview and Summary

In the matter of Ray White Holland Park, trading as Yes Estate Agents Pty Ltd, the Appellant, and Zagami, the Respondent, the court was tasked with addressing the Appellant's appeal against a tribunal decision regarding a bond claim. The dispute originated from an adjudication where the Adjudicator refused to consider the lessor's documentation due to several reasons. The Appellant argued that this refusal constituted an error of law and sought to have the tribunal's decision overturned.

The central legal issue before the court was whether the Adjudicator's refusal to take into account the lessor's documentation amounted to an error of law, warranting the appeal. Additionally, the court needed to determine the appropriate measure of damages for the breach of covenants to repair, particularly if the lessor had undertaken repairs using their own labour at the end of the tenancy. The Appellant contended that they were entitled to claim the value of this work as compensation from the tenant.

In granting the appeal, the court held that the Adjudicator had indeed erred in law by failing to consider the lessor's documentation. The court emphasised the importance of proper consideration of all relevant evidence and found that the tribunal's decision had been flawed. Regarding the measure of damages, the court acknowledged that if the lessor had used their own labour for repairs, the value of such work could be claimed as compensation, subject to appropriate assessment. The court set aside the tribunal's order and remitted the matter back for rehearing by a different decision maker.

The final orders of the court included amending the Appellant's name in the appeal record, granting leave to appeal, allowing the appeal, setting aside the tribunal's decision, and remitting the matter to the tribunal for rehearing. The decision underscored the necessity for tribunals to carefully consider all submitted evidence and correctly assess damages for breaches of covenant.

Orders

Orders of the court

1. The Appellant’s name in the record of the Appeal Tribunal is amended to ‘Yes Estate Agents Pty Ltd t/as Ray White Holland Park’.

2. Leave to appeal is granted.

3. The appeal is allowed.

4. The order made by the tribunal on 20 June 2018 in MCDT385/18 (Brisbane) is set aside.

5. The application is remitted to the tribunal to be heard in the Minor Civil Dispute list by a different decision maker on a date to be fixed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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