Recchia v McAllister
[2013] QCATA 112
•12 April 2013
| CITATION: | Recchia v McAllister [2013] QCATA 112 |
| PARTIES: | Michelle Recchia (Applicant/Appellant) |
| v | |
| Peter Michael McAllister (Respondent) |
| APPLICATION NUMBER: | APL303-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 12 April 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Application for leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where the applicant leased a house from the respondent – where the residential tenancy agreement was wholly oral – where the respondent brought proceedings in the Tribunal claiming that the applicant failed to pay rent –where the applicant filed a counter-application claiming compensation for the house being unliveable – where the Magistrate at first instance ordered that the applicant pay the respondent a fixed sum in lieu of rent subject to some reductions – where the applicant seeks to appeal that decision – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009, s 4(c), s 13(1), s 142(3)(a)(i), s 416(1)(a)(i), Schedule 3 |
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 (QCAT Act).
REASONS FOR DECISION
Mr McAllister owned a house at Kuranda. Ms Recchia rented it from him and lived in it without, it appears, any of the formalities envisaged by the Residential Tenancies and Rooming Accommodation Act 2008 (‘RTRA’).
Mr McAllister claimed that Ms Recchia had failed to pay him five weeks rent at $200.00 per week between 23 January and 27 February 2012 – i.e., $1,000.00. He brought proceedings in the Tribunal’s Minor Civil Disputes (MCD) jurisdiction.
Ms Recchia filed a counter-application claiming that the house was unliveable, and she should receive compensation.
The matter came on for hearing before a Magistrate, sitting as a QCAT Member, at Mareeba in 2012. Transcripts of the proceedings show the hearing actually proceeded over three days – 4 and 18 June 2012, and 2 July 2012. At the first hearing the learned Magistrate allowed Ms Recchia an adjournment to complete some calculations. The second hearing was also inconclusive. The third hearing, on 2 July, lasted almost 2.5 hours. At its conclusion, the learned Magistrate delivered his decision with oral reasons and ordered that Ms Recchia pay Mr McAllister $527.00 plus costs of $53.00.
Ms Recchia seeks leave to appeal that decision. Because the appeal she seeks to bring is from an MCD proceeding, she must first obtain the Appeal Tribunals leave.[1]
[1]QCAT Act s 142(3)(a)(i).
Leave to appeal will ordinarily only 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; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?
The learned Magistrate’s reasons show that he was troubled by a number of odd aspects of the proceedings, starting with the informality of the lessor/tenant arrangements. As he impliedly accepted, he did have jurisdiction to deal with the matter because the RTRA applies even when, as here, the residential tenancy agreement is wholly oral.[2]
[2]RTRA s 12.
The second matter which concerned him was whether or not Ms Recchia could actually bring a counter-application. Strictly speaking, she could not because r 48 of the Queensland Civil and Administrative Tribunal Rules 2009 (‘QCAT Rules’) does not allow counter-applications in what are called ‘minor debt claims’. That term is defined in the schedule to the rules to mean a minor civil dispute, a term which is then defined in Schedule 3 to the QCAT Act to include a ‘tenancy matter’ – a term itself defined, later in that schedule, to mean a matter arising within the jurisdiction encompassed by the RTRA.
Rule 49 of the QCAT Rules, however, addresses circumstances like those arising here: it says that, if circumstances arise in which a respondent to an application for a minor debt claim could have applied for orders against the applicant (but for r 48) the Tribunal may order that the circumstances be dealt with as a separate minor debt claim and give appropriate directions. Although the learned Magistrate did not direct himself to those provisions it is tolerably clear that he impliedly determined to hear and decide Ms Recchia’s counter-application by applying r 49.
In doing so he creditably, with respect, pursued the aims set in s 4(c) of the QCAT Act which requires that the Tribunal ensure proceedings are conducted in an informal way that minimises cost to the parties, and is as quick as is consistent with achieving justice.
Then, he was obliged to confront the fact that neither party appeared to have complied with s 416 of the RTRA, which provides that neither a lessor nor a tenant may apply to QCAT for relief under the RTRA unless the matter has been referred to a conciliation process, described in that section.
The transcript of the hearing on 2 July 2012 shows, however, that both parties had made some attempt to achieve compliance, and both had been rebuffed by the Residential Tenancies Authority (‘RTA’) which provides these conciliation services.
The learned Magistrate explained the relevant provision to the parties at some considerable length, commencing at page 4 of the transcript and, at page 8, asked both whether they wished to persist with their efforts to undergo conciliation. Both signified that they wanted the Magistrate to proceed with the hearing: Mr McAllister, because (as he said in evidence) he had applied to the RTA who had told him to proceed to a hearing; and Ms Recchia because she had been told by the RTA that it had no jurisdiction.
In those circumstances the learned Magistrate was entitled to find that s 416 had been satisfied because, as it provides: the applicant (as the respondent, in this matter, then was) made a dispute resolution request but the conciliation process had not occurred because the RTA refused to provide a conciliation service about the issue.[3]
[3]QCAT Act s 416(1)(a)(i).
In his reasons the learned Magistrate then went on to analyse the lengthy and detailed evidence of both parties about the alleged arrears of rent, various adjustments between the parties when one or the other provided or paid for services, and Ms Recchia’s claims for compensation.
In resolving these issues he relied heavily, as his Reasons show, upon a letter or email from Ms Recchia to Mr McAllister of 10 December 2011 in which she offered to remain as a tenant at a ‘reduced’ rent of $200.00.
The grounds for appeal advanced by Ms Recchia are long, and numerous. Her first two grounds appear to relate to the absence of any mediation or conciliation process under s 416. For the reasons discussed above, these grounds have no substance.
Her third ground repeats a statement made by the learned Magistrate in which he expresses some uncertainty about the question whether or not he actually had jurisdiction. Again, for the reasons discussed above, I am satisfied that it was appropriate for him to proceed.
Her fourth, fifth and sixth grounds advance various arguments that the learned Magistrate misconstrued or misapplied the evidence. None of these grounds are made out. The hearing before the learned Magistrate was long, and each party had ample opportunity to present its evidence, and submissions. The Magistrate’s reasons are lengthy and detailed and show that, ultimately, he was persuaded that the parties had agreed to lower the rent because of defects in the premises, and that the reduction itself sufficiently reflected Ms Recchia’s rights to compensation. His reasons are, with respect, persuasive that a conclusion to that effect was reasonably open and, importantly, reflected a fair and equitable result which would resolve the dispute before him (as s 13(1) of the QCAT Act requires).
As to the letter of 10 December 2011 upon which the learned Magistrate relied, Ms Recchia says she only offered the reduced rent if certain repairs, which she said were necessary and imperative, were made. That matter was, however, specifically addressed at page 4 of the learned Magistrate’s reasons when he said that the state of the evidence made it difficult, if not impossible, for him to draw a conclusion as to whether or not the allegations made by Ms Recchia about defects meant that the property was unliveable or alternatively warranted a rent reduction by way of compensation.
He then went on to recite a passage from the letter and to observe that it, in his view, constituted an acceptance by Ms Recchia of the property for occupation, as it was, subject to the landlord’s acceptance of the rent reduction. It cannot be said that this finding was unreasonable, or against the evidence or the weight of evidence presented to him.
Ms Recchia’s eighth point involves an allegation that the Magistrate misunderstood some of her evidence. The transcript does not support that contention. The learned Magistrate observed in his Reasons that, during the course of the hearing, Ms Recchia had indicated to him that she was not claiming items in what she called her list of miscellaneous expenses. At page 26 of the transcript Ms Recchia is recorded as responding to a question from the learned Magistrate indicating that these expenses have not been included in her counterclaim.
In light of that submission, the statement of the learned Magistrate (to which offense is now taken) is unsurprising. As it also appears from the evidence and the Reasons, the statement does not signify (as Ms Recchia claims in her submissions) that the items in the list were not taken into account in respect of her defence to Mr McAllister’s claim for arrears of rent.
Ms Recchia’s ninth point is that the learned Magistrate made errors about some evidence she gave concerning receipts for telephone and electricity bills. Again, the alleged error is not apparent either from the transcript of the hearing itself, or from the Magistrate’s reasons.
Ms Recchia’s tenth point is that the Magistrate made an error in his calculations. She goes into great detail about figures for mowing costs and an alleged discrepancy of $170.00. The submission is, with respect, incomprehensible.
Her eleventh point is that she began paying rent of only $200.00 and the landlord unlawfully raised it, later, to $250.00. She now claims, in the context of an unwritten agreement and evidence that she paid the increased rent without demur, that the later agreement to reduce the rent by $50.00, to $200.00 per week, cannot properly be used as a basis for deciding that she had accepted the reduction as, in effect, compensation. The argument is mischievous, and does not reflect well upon her: the evidence clearly established that she paid the increased rent for some considerable time, apparently without demur.
Her twelfth point relies upon advice she allegedly received from the RTA to the effect that she should not have had to pay any rent because the premises were unsafe. There was no evidence to support this allegation before the learned Magistrate.
Her final point concerns an alleged language barrier because she speaks ‘Canadian English’. Nothing in the transcript of the lengthy proceedings suggests the Magistrate had any difficulty in understanding her.
This analysis of Ms Recchia’s grounds of appeal shows nothing warranting a grant of leave. The learned Magistrate strove, with respect, to fashion a fair and equitable outcome in a case in which the parties had failed to make any attempt to address the formal requirements of the RTRA, and had dealt with each other in a way that was informal, and at times messy – and, at the hearing, left the learned Magistrate to find a path through a welter of confused, and confusing, evidence. His patience, and the careful enquiry he undertook during the lengthy hearing, were maintained in his lengthy and careful Reasons in which no palpable error can be detected.
For these reasons, the application for leave to appeal must be refused.
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