Sinclair v Crawley - [2025] QCATA 8

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Sinclair v Crawley [2025] QCATA 8

PARTIES:

LINDSAY JOHN SINCLAIR

(APPLICANT/APPELLANT)

v

BENJAMIN JOHN CRAWLEY

(respondent)

APPLICATION NO/S:

APL083-24

ORIGINATING APPLICATION NO:

MCDT445/23 (Southport)

MATTER TYPE:

Appeals

DELIVERED ON:

24 January 2025

HEARING DATE:

18 November 2024

Brisbane

DECISION OF:

Member Bishop

ORDERS:

1.     Leave to appeal is granted.

2.     Appeal allowed.

3.     The decision made on 26 February 2024 is set aside and the application and counter-application are remitted to the Tribunal below to be considered by a differently constituted Tribunal.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF FACT – where decision in a residential tenancy dispute dismissed the lessors’ claim for compensation – where tenant filed cross-application – where compensation paid to tenant because of the condition of the property – where property was sublet – where unsatisfactory evidence of loss suffered by tenant where sublease not impacted by property condition

Queensland Civil and Administrative Tribunal Act2009 (Qld), s 32, s 143

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 185, s 214, s 420

Cachia v Grech [2009] NSWCA 232

Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388

Johnson v Perez (1988) 166 CLR 351

McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

Background

The Respondent tenant (‘Mr Crawley’) leased a property (‘the Property’) from the Applicant lessor (‘Mr Sinclair’) pursuant to a residential tenancy agreement. The tenancy commenced on 1 March 2022 and expired on 28 February 2023. The rent was $1,500.00 per week and Mr Crawley agreed to pay a year’s rent upfront (a total of $78,000.00 and $6,000.00 bond).
At the conclusion of the lease, no Exit Condition Report was completed. Mr Sinclair claims the Property was not left in the same condition as at the commencement of the lease and he suffered financial losses in excess of the Bond.

What is this application about?

Mr Sinclair filed an Application for a Minor civil dispute – residential tenancy dispute (MCDT445/23 – Southport) (‘the MCD Application’) against Mr Crawley claiming an amount of $20,487.00 for the:
(a)costs of cleaning and gardening at the Property;
(b)loss of rent; and
(c)costs of repairing damage to the Property.
On 18 October 2023 Mr Crawley filed a Minor civil dispute – counter-application claiming Mr Sinclair was in breach of sections 185(3) and 214 of the Residential Tenancies and Rooming Accommodation Act2008 (Qld) (‘the Act’) and in breach of clauses 25(2) and 30 of the parties’ tenancy agreement (‘the MCD Counter-Application’). Mr Crawley was seeking a refund of rent for the maximum amount.
The MCD Application commenced being heard on 3 October 2023 before being adjourned. The hearing was reconvened on 26 February 2024 after the MCD Counter-Application was filed.
The learned adjudicator dismissed the MCD Application and, in the MCD Counter- Application, ordered Mr Sinclair to pay Mr Crawley $14,326.07 in compensation – being $12,428.58 for 50% of the $1,500.00 rent per week for the period 5 November 2022 to 28 February 2023 for breaching section 185 of the Act, $1,518.00 for the cost of a mould investigation and report and $379.50 for the cost of the filing fee. The Residential Tenancies Authority was ordered to pay Mr Crawley’s bond of $6,000.00 to Mr Crawley (‘the Decision’).
Mr Sinclair wants to appeal the Decision but requires leave to do so.[1]
[1]Queensland Civil and Administrative Tribunal Act2009 (Qld) (‘QCAT Act’), s 143(3).

Application for leave to appeal

To grant leave, the Appeal Tribunal must be satisfied that:
(a)there is a reasonably arguable case of error in the primary decision;[2]
(b)there is a reasonable prospect that the appellant will obtain substantive relief;[3]
(c)leave is needed to correct a substantial injustice caused by some error;[4] or
(d)there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.[5]
[2]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[3]Cachia v Grech [2009] NSWCA 232, 2.
[4]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[5]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, 577, 580.
Mr Sinclair’s grounds for leave to appeal include:
(a)the learned adjudicator failed to act impartially when he encouraged Mr Crawley to make a counter-claim;
(b)the learned adjudicator took into account irrelevant considerations and failed to take into account relevant considerations; and
(c)there was no evidence to justify the learned adjudicator’s decision.
Failure to take into account relevant considerations
The objective evidence before the Appeal Tribunal is Mr Crawley sublet the Property and received income from his sub-tenants for doing so.
Mr Sinclair’s submissions dated 21 June 2024 state that, on 18 December 2023, he filed an Application for Miscellaneous Matters seeking, amongst other things, disclosure of Mr Crawley’s bank statements to show the rent he received from sub-letting the Property without Mr Sinclair’s authority to do so. The learned adjudicator refused Mr Sinclair’s application to produce Mr Crawley’s bank statements.
Before the Tribunal (as outlined below) was a number of emails from Ms Crystallee Lord (a person working on behalf of Mr Crawley) to Mr Crawley titled “Flatmate Recommendations.” On 23 October 2022 at 1:27 am Ms Lord wrote to Mr Crawley stating, “Here’s my recommendations from today’s group inspections/meet and greets.” Ms Lord outlined a number of people and then stated:
Let me know your preference, otherwise I can proceed with another group inspection tomorrow. Most hits are coming from working males & couples.
Ms Lord’s subsequent emails to Mr Crawley confirmed who had been accepted to sublet the Property, that she would arrange keys to be duplicated, that she would initially receive the rent and then transfer it to Mr Crawley.
On 24 October 2022 at 9:51am Mr Crawley sent an email asking what the total rent would be per week and on 24 October 2022 Ms Lord responded $1,550.00 per week in total minus 10% for managing the subletting (a net position of $1,395). Ms Lord emailed Mr Crawley on 23 October 2022 at 6:49 pm stating the potential returns would be $21,000.00 if all sub-tenants stayed for their full term.
On 26 October 2022 Mr Crawley sent an email to Ms Buckingham (personal assistant for Mr Sinclair) informing her the water leak had returned and that he had people “renting some rooms” as he was away a lot.
During the hearing on 3 October 2023, the learned adjudicator asked Mr Crawley if he was subletting the Property to others and he responded, “I had some friends stay in the property while I was overseas…”.[6] The learned adjudicator referred to Mr Crawley’s email dated 26 October 2022 disclosing he was renting some rooms and asked Mr Crawley if he had “let people in to rent rooms without the express consent of either Mr Sinclair or Ms Buckingham”,[7] Mr Crawley responded that “they were friends”.[8]
[6]Hearing Transcript page 1-10 at 35 to 45.
[7]Ibid page 1-12 at 35 to 45.
8 Ibid.
During the hearing on 26 February 2024 the learned adjudicator asked Mr Crawley if he had sublet rooms and Mr Crawley responded: “I had some friends stay in the property for a month while I was away…”.[9] When the adjudicator asked Mr Crawley if he had been paid rent, he responded he was “paid a contribution toward that, but I shared that with another friend that was required to go and check to make sure that it was looked after.”[10]
[9] Hearing Transcript page 1-10 at 30 to 45.
[10]Ibid.
Parties seeking compensation must take reasonable steps to mitigate their loss and are not entitled to receive compensation for any loss or expense that could have been avoided by taking such steps.[11] The intention of compensation is to put the complainant back, as far as money can do it, into the same position as if the damage had not occurred.[12]
[11]Residential Tenancies and Room Accommodation Act 2008 (Qld), s 420.
[12]Johnson v Perez (1988) 166 CLR 351.
The learned adjudicator awarded Mr Crawley an amount of 50% of the rent he had paid for the period 5 November 2022 to 28 February 2023. However, there is evidence before the Tribunal to indicate Mr Crawley was subletting the Property for some or all of this period of time while he was not living there. The learned adjudicator noted in his reasons Mr Crawley “was not there all that often, so he did not have to endure the full effects”[13] of the Property. However, based on the Decision’s reasons, the rent Mr Crawley received from subletting was not taken into account when assessing the compensation payable to him.
[13]Hearing Transcript page 1-26 at 15-20.
An error of law may be found where a decision maker has made a decision which is manifestly unreasonable by failing to give adequate weight to a relevant factor of great importance or giving excessive weight to a relevant factor of no great importance.[14]
[14]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
The rent Mr Crawley received from subletting the Property is a relevant consideration when determining an award of compensation; because the purpose of compensation is to restore his position to what it would have been had he not suffered loss. If Mr Crawley did not discount the rent he charged to his sub-tenants during the period he claims compensation for, he did not suffer any loss arising from Mr Sinclair’s breach of his obligation to maintain the Property. A Tribunal order should only restore, not better Mr Crawley’s position.
The Appeal Tribunal is not satisfied the learned adjudicator gave adequate weight to the relevant issue as to whether Mr Crawley suffered loss during the period for which he seeks compensation. Leave to appeal is granted and the appeal allowed on that basis. Whether Mr Crawley suffered loss is a question of fact that will need to be considered on contested evidence before the Tribunal below. In those circumstances, the Appeal Tribunal does not need to determine the other issues Mr Sinclair raised.

Decision

The Appeal Tribunal has found the appellant has demonstrated a reasonable prospect of obtaining substantial relief and the application for leave to appeal is granted.
The Appeal Tribunal orders that the learned adjudicator’s decision be set aside and the MCD Application and the MCD Counter-Application be reheard by a differently constituted Tribunal.