Ray White Wynnum/Manly v Armstrong

[2010] QCATA 34

CITATION: Ray White Wynnum/Manly v Armstrong & Another [2010] QCATA 34

PARTIES:	Ray White Wynnum/Manly (Applicant)
v
Luke Armstrong and Nathan McLauchlan (Respondents)

APPLICATION NUMBER:            APL068-10               

MATTER TYPE:

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON:   30 July 2010

DELIVERED AT:   Brisbane

ORDERS MADE:  Application for leave to appeal dismissed

CATCHWORDS : 

RESIDENTIAL TENANCIES – APPEAL AGAINST FINDINGS OF FACT  –  COMPENSATION FOR CLEANING AND REPAIRS – where applicant seeks compensation for various cleaning and repairs – where adjudicator ordered payment for some but not all cleaning and repairs – whether wrong findings of fact

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

REASONS FOR DECISION

1. Mr Luke Armstrong and Mr Nathan McLauchlan were tenants at premises on Wynnum North Rd in Wynnum managed, for the owner of the premises, by Ray White Wynnum/Manly.

1. On 6 April 2010 two applications relating to the same tenancy agreement for the premises were heard together in QCAT’s Minor Civil Disputes jurisdiction. The first (745 of 2010) was a claim by the tenants for a return of the bond deposit; and the second (911 of 2010) a counter claim by the property manager on behalf of the owner for compensation for alleged damages to the property.

1. Mr Martinsen of the Bayside Tenancy Advice and Advocacy Service appeared at the hearing on behalf of the tenants and Ms Scott, the property manager, appeared for Ray White Wynnum/Manly.

1. The learned adjudicator was of the view that both matters should be heard together as the question of liability in the counter claim would affect the determination of the claim about the bond and, if returned, the amount.

1. Ms Scott’s claim alleged various incidents of property damage to the premises, including expenses for the need to use jet blast cleaning to remove oil and grease on the garage floor; replacing the main bedroom bathroom towel and plugs to the bath and basin, and the lock for the letterbox, and hinges on the cupboards and the laundry tub door; repainting of the living room area; and repainting certain patches on walls in various rooms; and removal of a damaged fence left behind after a new fence had been installed.

1. Ms Scott did not produce an entry report or any photographs to substantiate these allegations, and the tenants did not complete an exit report to counter them. The learned adjudicator quite appropriately pointed out to the parties that there was a great deal of conflicting evidence.

1. Other than admitting the necessity for cleaning of the garage floor, the tenants disputed the need for the remainder of the cleaning and replacement charges, alleging that the premises had already been in a state of disrepair prior to their moving in. Specifically, it was contended for the tenants that most of the expenses claimed for repair or replacement were maintenance issues resulting from normal wear and tear, and therefore not recoverable; that the patches in the walls had already been painted, and the painter had unnecessarily repainted these patched areas again; and that they had never actually been provided with a key for the letterbox.

1. Two additional issues arose during the hearing but were not raised as grounds in this appeal. The first involves the final inspection of the premises. The tenants gave the landlord 14 days notice of their intention to leave prior to the expiration of the lease and this was accepted by the landlord (it was agreed earlier that there would be no break-lease fee). It was alleged by the tenants that the following day they received a phone call that the final inspection had been completed and certain items were required to be fixed, and that although they enquired about the repairs, they were advised that outside persons would completing the cleaning and repairs. It is the consequent charges for that work which form the basis of the counter claim.

1. Ms Scott contended that she was advised by the tenants that they would be leaving on a trip to New Zealand shortly after vacating and therefore a joint inspection could not be arranged.  The tenants alleged, however, that their trip was actually a few weeks later but admitted that they failed to properly advise Ms Scott of the exact date. However, the tenants nonetheless alleged that they had not been properly notified about the alleged damages.

1. The second issue arises from the early termination of the lease.  The property manager mistakenly sought compensation for rental arrears arising from the early termination. It was acknowledged by Ms Scott that this was an error, and this part of the counter claim was properly dismissed.

1. After hearing evidence and submissions from both parties, the learned adjudicator found that the only claim that was justified was $65 for the jet blast cleaning fee for the garage and some additional cleaning fees, amounting to $100, evidenced by invoices. The claim for the repainting of the walls was dismissed because it was found that the tenants were not properly advised that these repairs were necessary.

1. The tribunal ordered that $165 be taken out of the bond for the cleaning and repair fees, and that the remainder to be returned to the tenants.

1. Ray White now seeks leave to appeal that decision. Leave is necessary: Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), s 142 (3)(a)(i). The parties were directed to submit, if they wished, written submissions addressing the leave to appeal application. The respondents have done so, but the agent advised that she did not intend to submit anything more than what was contained in the original application for leave.

1. In her application, Ms Scott contends that the learned adjudicator erred in not finding that the repainting of the patches was necessary as, according to her, the patches in the walls had been painted with the wrong colours; and also erred in not finding that the hinges on the cupboard and the towel rail were intentionally pulled out rather than falling off as a result of natural wear and tear. Oddly, Ms Scott also repeats the claim for the oil stains in the garage, which had already been awarded in her favour.

1. Ms Sarah Westerman of the Bayside Tenancy Advice & Advocacy Service (on behalf of the tenants) submitted that the applicant had not identified any error of fact or law in the decision of the adjudicator.  For reasons which follow, that submission is correct. Indeed, the agent’s submissions contain no apparent attempt to do so. It is disappointing – and ultimately wasteful – to see the appeal process being called up without any apparent attempt to consult the legislation, consider its provisions, and address them.   

1. This matter involves conflicting factual evidence. Generally speaking, an appellate tribunal does not disturb findings of fact made by the primary decision-maker unless persuaded that they were made on an absence of evidence, which would then amount to an error of law[1]. 

   [1]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355

1. A review of the transcript of the proceedings (including the learned adjudicator’s reasons for his decision) shows that he heard evidence from both parties, reflected upon it in his final decision, and gave cogent reasons for his findings about it. There is simply nothing to suggest that those findings lacked any evidentiary basis, or were not reasonably open on the evidence presented at the hearing. 

1. There are, then, no demonstrated or discernable errors in the learned adjudicator’s conduct of the proceedings, or the process by which he reached his decision, or the decision itself. Nor is there any question of importance about which further argument is desirable or in respect of which a decision of the Appeal Tribunal would of public benefit. Leave to appeal should, then, be refused.