Rental Homes Now v Schafer

[2014] QCATA 201

CITATION: Rental Homes Now v Schafer & Anor [2014] QCATA 201

PARTIES:	Rental Homes Now (Applicant/Appellant)
v
Frances Schafer Glen Schafer (Respondents)

APPLICATION NUMBER: APL049-14

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Thomas, President

DELIVERED ON: 25 July 2014

DELIVERED AT: Brisbane

ORDER MADE: The application for leave to appeal is refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR  CIVIL DISPUTE – RESIDENTIAL TENANCIES – where claim for damage to laundry bench top refused – where claim for damage to manhole refused – whether grounds for leave to appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 142(3)(a)(i)
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 421(1)(c)-(d)

Chambers v Jobling (1986) 7 NSWLR 1, cited
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, applied
Dearman v Dearman (1908) 7 CLR 549, applied
Fox v Percy (2003) 214 CLR 118, applied
Pickering v McArthur [2005] QCA 294, applied

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

1. After three and a half years in a home rented through Rental Homes Now, Mr and Mrs Schafer gave notice of their intention to leave.  They knew that, because it was a break lease, they would have to pay something. However, they thought that they left the home in good condition and most of the bond would be returned to them.  They filed an application for payment of the bond.  Rental Homes Now filed an application for compensation for damage to the tenancy.  A Magistrate, sitting in the minor civil disputes jurisdiction of the tribunal, allowed some, but not all, of Rental Homes Now’s claims.

2. Rental Homes Now wants to appeal the learned Magistrate’s decision to refuse compensation for repainting a manhole cover ($49.50) and replacing a laundry bench top ($288.75). As to the manhole cover, Rental Homes Now submits that the evidence supports a finding that the cover was damaged during the tenancy. As to the bench top, Rental Homes Now refers to s 421(1)(c) and (d) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) but does not explain the relevance of the sections to the learned Magistrate’s decision. Once again, Rental Homes Now submits that the evidence can support its claim.

3. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1]  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.[2]

   [1]QCAT Act s 142(3)(a)(i).

   [2]Pickering v McArthur [2005] QCA 294 at [3] per Keane JA.

1. The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions,[3] however may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[4] 

   [3]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.

   [4]Chambers v Jobling (1986) 7 NSWLR 1 at 10.

1. Rental Homes Now has provided larger versions of relevant photos to the appeal tribunal.  The admission of additional evidence will be considered if it was not reasonably available at the time the proceeding was heard and determined at first instance.  Where a party seeks to rely on such evidence, the party must satisfy three tests: with reasonable diligence, could the evidence have been obtained for use at the trial?  If allowed, would the evidence probably have an important impact on the result of the case?  Is the evidence credible?[5]

   [5]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.

1. It is obvious that Rental Homes Now could have provided these photos to the learned Magistrate.  The photo of the manhole before the learned Magistrate was 8cm x 6cm.  The photo now provided to me is 25cm x 19cm.  It is disappointing that the agent was not sufficiently prepared for the hearing, and so did not provide photographic evidence to the tribunal in a way that it thought properly demonstrated the point it sought to establish.  The larger photos that Rental Homes Now seeks to admit do no more than show the condition of the particular areas.  The photographs are not evidence of the cause of the damage or whether the damage was anything other than fair wear and tear.

1. Mr and Ms Schafer told the learned Magistrate that they never accessed the ‘roof’.[6]  The agent couldn’t explain why the manhole cover was cracked.[7]  The learned Magistrate observed that there are a number of reasons why a manhole cover could crack, without any action from the tenant.[8]  He was not satisfied that Mr and Ms Schafer were responsible for the crack and the evidence was consistent with that finding.

   [6]Transcript page 1-5, lines 32 – 34.

   [7]Transcript page 1-13, lines 13 – 19.

   [8]Transcript page 1-17, lines 17 – 18.

1. The learned Magistrate made a similar finding about the damaged laundry bench top.[9]  The learned Magistrate took evidence about the cause of the damage but he was not persuaded by Rental Homes Now’s submissions that the damage was caused by pooling water.  The evidence can support the learned Magistrate’s findings and I can find no compelling reason to come to a different view.

   [9]Transcript page 1-17, lines 34 – 35.

1. There is no reasonably arguable case that the learned Magistrate was in error and accordingly, leave to appeal should be refused.