Rental Express v Lawless

[2011] QCATA 163

CITATION: Rental Express v Lawless and Ors [2011] QCATA 163

PARTIES:	Rental Express
v
Mr Gary Lawless, Ms Kirsty Dunleavy, Mr Damien Plumbley

APPLICATION NUMBER:            APL086-11               

MATTER TYPE: Appeals

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Richard Oliver, Senior Member
Peta Stilgoe, Member

DELIVERED ON:   6 July 2011

DELIVERED AT:   Brisbane

ORDERS MADE:       Leave to appeal refused.

CATCHWORDS:  MINOR CIVIL DISPUTE – where dispute over the bond – whether grounds for leave to appeal

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

Mr Oliver

1. In this matter the Appeal Tribunal consisted of Ms Stilgoe, QCAT Member and me.  I have had the benefit of reading her reasons in draft.  I agree with her reasons, and her conclusions, and the order she proposes.

Ms Stilgoe

1. Mr Lawless, Ms Dunleavy and Mr Plumbley were tenants of a house managed by Rental Express.  After the tenants vacated, they sought payment of the bond.  Conversely, Rental Express claimed payment of the bond to cover unpaid rent, cleaning fees, pool cleaning fees, gardening costs and carpet deodorising costs.  The learned Adjudicator found that the tenants were liable to pay for carpet cleaning and a small amount of rent but the bulk of the bond was returned to the tenants.

1. Rental Express has appealed the learned Adjudicator’s decision on the grounds that:

a)    The decision was wrong and the learned Adjudicator did not look at the facts objectively.

b)    The learned Adjudicator did not take current legislation into account in regard to the notice to leave.

c)    The tenants agreed to the cleaning of the property including the pool and gardens but then refused to pay the costs.

1. Because this is an appeal from a decision of the tribunal in its minor civil dispute jurisdiction, leave is necessary.  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?

1. I have read the transcript carefully.  I am satisfied that the learned Adjudicator did consider the facts objectively.  It is not enough for Rental Express to simply say that it considers the learned Adjudicator’s decision was wrong without pointing to some specific reason or example of the learned Adjudicator’s supposed error.

1. Rental Express says that, as it did not receive a response to the notice to leave, it must stand and the termination date should therefore be 14 December 2010 not 27 November 2010.  The learned Adjudicator’s decision on this point has nothing to do with the interpretation of “current” legislation; he expressly accepted[1] that the tenants did properly respond to the notice to leave and that Rental Express was unable to provide any real evidence to the contrary because of its staff turnover[2].  That finding can be supported by the evidence available to the learned Adjudicator and I can find no reason to come to a different conclusion.

   [1]        Transcript page 15, lines 1-13.

   [2]        Transcript page 15, lines 8-13.

1. The tenants gave evidence[3] that their offer to come back to clean the pool and attend to the garden was conditional upon “everything else” being sorted out and that Rental Express went back on that agreement.  The tenants also gave evidence, which the learned Adjudicator accepted, that the pool was clean and the garden in order when they left on 27 November 2010.  Again, this is a finding which is open to the learned Adjudicator on the evidence before him.

   [3]        Transcript page 10, lines 15-26.

1. There is no question of general importance that should be determined by the appeals tribunal; there is no reasonably arguable case that the learned Adjudicator was in error; there is no reasonable prospect of substantive relief on appeal; and there is no evidence that a substantial injustice will result if leave is not granted.  Leave to appeal should be refused.