Shekelton v Neal
[2012] QCATA 156
•28 August 2012
| CITATION: | Shekelton and Anor v Neal [2012] QCATA 156 |
| PARTIES: | Grant Shekelton Nancy Brown (Applicants) |
| v | |
| Katrina Neal (Respondent) |
| APPLICATION NUMBER: | APL047-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 28 August 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal refused. |
| CATCHWORDS: | MINOR CIVIL DISPUTE – tenancy matter – where dispute about whether rent paid – where agreement as to distribution of bond at the hearing – where applicant attempted to raise new issues in the appeal Queensland Civil and Administrative Tribunal Act 2009, ss 28(3)(e), 137, 142(3) QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 |
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 Shekelton and Ms Brown entered into a tenancy agreement with Ms Neal to rent her house in Stafford. Ms Neal says the Applicants fell into arrears of rent so she commenced proceedings in the minor civil disputes jurisdiction of the Tribunal on 18 November 2011, to claim the rental arrears. Furthermore, Ms Neal also sought payment of part of rental bond from Mr Shekelton and Ms Brown in accordance with an agreement reached with them.
On 19 January 2012 the matter came on for hearing. The learned Adjudicator found that despite the respondent contending all rent had been paid $650.00 remained owing to the applicant. He also found, as conceded by the respondents[1] that the applicant was entitled to the part of the bond of $653.00. An order was made for Mr Shekelton and Ms Brown to pay Ms Neal a sum of $1,303.
[1] Transcript page 3 line 3.
From that decision, Mr Shekelton and Ms Brown filed an application for leave to appeal or appeal on 20 February 2012. Mr Shekelton and Ms Brown’s grounds of appeal are that the:
a. Primary decision was made on a basis of insufficient evidence. Specifically, that a full rent ledger was not provided and that the Applicants’ only owed one fortnight’s worth of rent instead of two fortnight’s worth.
b. The rental bond should be returned to them in full, as there was a dispute over repairs that were never performed by Ms Neal.
Leave to appeal is necessary as this is an appeal from a decision in the minor civil disputes jurisdiction.[2] Leave to appeal is ordinarily granted in accordance to established principles: whether there is a reasonably arguable case of error in the primary decision;[3] whether the applicant has reasonable prospects at obtaining substantive relief;[4] whether leave is necessary to correct a substantial injustice to the applicant caused by some error;[5] whether the matter is of general importance of which further argument and a decision of the appellate court or tribunal, would be to the public advantage.[6]
[2] QCAT Act, s 142(3).
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4] Cachia v Grech [2009] NSWCA 232, 2.
[5] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[6]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
The Applicants contend that there was insufficient evidence to establish that there were arrears of rent. Mr Shekelton and Ms Brown produced a bank statement dated 30 June 2010, indicating internet transfer payments were made to Ms Neal on 29 January 2010 and 2 February 2010. However, it appears that the payment made on 29 January 2010 was reversed and redeposited back into the Applicants’ account on 1 February 2010. Therefore, this suggests and the learned Adjudicator found, that only one payment was made for an amount of $650 to Ms Neal on 2 February 2010, which she received on 3 February 2010. The full ledger that Ms Neal has submitted indicates that the Applicants failed to make several rental payments, which were then made up for in other payments. However, the ledger clearly shows that there was an outstanding arrear of $650.
The Appeal Tribunal will not disturb the findings of fact of the primary decision-maker unless persuaded the findings they lacked an evidentiary basis, or were affected by some other error of law.[7] It is apparent here, that the learned Adjudicator’s decision was made based on the evidence that was presented to him. His conclusion was supported by the fact that Mr Shekelton and Ms Brown failed to produce sufficient evidence to prove that a second payment of $650 was made, because they did not perform a trace on that transaction.
[7] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355.
Furthermore, the Applicants contest that Ms Neal did not provide them with a full ledger despite several requests. However, Ms Brown refers to a “ledger” in her emails dated 1 February 2011 and 12 February 2011. This suggests that one was provided to them but in any event it is not relevant to the appeal and the findings of the learned Adjudicator. Consequently, this ground of appeal fails as there has been no error in the decision.
Mr Shekelton and Ms Brown also contend that the rental bond should not be shared with Ms Neal, as decided in the primary hearing, due to a dispute over repairs. The rental bond of $1,260 was held by the Residential Tenancies Authority (RTA) for the parties.
On 25 August 2011 the parties signed a Refund of Rental Bond form, which indicated that the Applicants would receive $607 of the bond and Ms Neal would be paid the remaining $653 of the bond to cover the last two weeks of rent owed and cleaning fee.
[10]On 17 October 2011 Ms Neal received a letter from the RTA, advising her that they were unable to assist with resolving the rental arrears dispute between the parties. Furthermore, the rental bond had been paid out to Mr Shekelton and Ms Brown.
[11]At the hearing Mr Shekelton agreed that $653 of the bond should have been paid to Ms Neal and that he had made attempts to but was unsuccessful. However, Mr Shekelton and Ms Brown now disagree with this decision, claiming that they are entitled to the full refund due to repairs not made during the tenancy.
[12]In the appeal application, the Applicants submitted a letter dated 14 September 2011 which outlines a number of repairs they requested to be fixed by Ms Neal and were not. It is on this basis that the Applicants claim their entitlement to the full rental bond refund. However, this claim was not presented to the Adjudicator at the time of the hearing.
[13]In conducting a proceeding, the tribunal must ensure, so far as is practicable, that all relevant material is disclosed at the proceeding to enable the tribunal to make a decision.[8] New evidence will ordinarily only be allowed at an appeal where it could not have been reasonably obtained for the original hearing,[9] is credible[10] and might have produced an opposite result.[11] In the appeal application, Mr Shekelton and Ms Brown have provided photographs of the various areas that required repair. It would appear that this evidence was available at the time of the hearing, as the handover date was 14 August 2011.
[8] QCAT Act, s 28(3)(e).
[9] QCAT Act, s 137.
[10] Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408.
[11] Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435.
[14]The transcript of the hearing indicates that the Applicants were given opportunities to raise any new issues in regards to sharing the rental bond refund with Ms Neal.[12] However, Mr Shekelton only suggested that his reasoning for retaining the full refund was because Ms Neal had not appealed the RTA’s decision. Therefore, based on the material that was provided to the Adjudicator at the time of the hearing, there was no error made.
[12] Transcript of MCD hearing, pp. 2, 3 and 8.
[15]In the circumstances leave to appeal is refused.
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