Sleight v Shaw
[2014] QCATA 67
•4 April 2014
| CITATION: | Sleight & Anor v Shaw & Anor [2014] QCATA 067 |
| PARTIES: | Phillip Sleight Tracey Sleight (Applicants/Appellants) |
| V | |
| Robert Shaw Kathryn Ingle (Respondents) |
| APPLICATION NUMBER: | APL239 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Thomas, President |
| DELIVERED ON: | 4 April 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 27 May 2013 is set aside. 4. Phillip and Tracey Sleight shall pay Robert and Kathryn Ingle $112 within 21 days of the date of this judgment. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where respondents’ application to release bond was successful – where applicants made a counterclaim for rent arrears – where tribunal ordered relief from rental arrears and refused compensation for bond clean – where the renal agreement provided that the property be professionally cleaned – where there was evidence that the property was clean at the commencement of the tenancy – whether leave to appeal should be granted – whether the learned Magistrate erred in finding that the respondents were not liable for the cost of having the property cleaned – whether appeal should be allowed Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 3(b), 32 Chambers v Jobling (1986) 7 NSWLR, cited Dearman v Dearman (1908) 7 CLR 549, cited Pickering v McArthur [2005] QCA 294, cited |
APPEARANCES and REPRESENTATION (if any):
The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
Background
Mr Shaw and Ms Ingle rented a home in Bundaberg from Mr and Mrs Sleight. The property was flooded twice in February 2013. Although the house itself was not affected, the flood did affect access and services to the house. Mr Shaw and Ms Ingle vacated the home in March 2013. They did not pay rent for the last nine days of their tenancy.
Mr Shaw filed an application for release of the bond. Mr and Mrs Sleight’s agent at the time, Bluant Rentals, filed an application for rent arrears. The bond was released to Mr and Mrs Sleight and a Magistrate, sitting as an ordinary member of the tribunal, ordered Mr and Mrs Sleight pay Mr Shaw and Ms Ingle $882. He also ordered that Mr Shaw and Ms Ingle were relieved from paying $752.29 rent for the period 25 February 2013 to 26 February 2013, and from 27 February 2013 to 18 March 2013.
Mr and Mrs Sleight want to appeal the learned Magistrate’s decision. They say that he erred in finding that Mr Shaw and Ms Ingle were not responsible for a bond clean of $770. They say that the learned Magistrate erred in giving Mr Shaw and Ms Ingle rent relief.
Leave to appeal
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as his Honour then was) in Pickering v McArthur:
There are numerous authorities, in varying language but with unvarying emphasis, that 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.[1]
Discussion
[1][2005] QCA 294 at [3].
The tribunal can order a reduction of rent if premises are partly unfit to live in.[2] Mr Shaw’s and Ms Ingle’s application included a claim for “flood damage”. Because the tribunal has an obligation to deal with matters in a way that is fair, just and informal,[3] the learned Magistrate, as he was entitled, interpreted this as an application for a rent decrease. There is no error in the learned Magistrate’s decision to give Mr Shaw and Ms Ingle rent relief for the period that the premises were flood affected.
[2]Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 94.
[3]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3(b).
The learned Magistrate decided that, if there was no proof of a professional bond clean at the beginning of the tenancy, he would not allow a bond clean at the end.[4] While that may be a practical approach, the learned Magistrate’s decision ignored evidence which should have compelled him to take a different view.
[4]Transcript page 1-16, at lines 6-7.
The appeals tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[5] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[6] The appeals tribunal must exercise its own discretion when considering whether the original decision maker was in error.[7]
[5]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[6]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[7]Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
The tenancy agreement included this condition:
…the property is to be professionally cleaned, or to be cleaned to a standard which is acceptable to Bluant Rentals upon vacating the premises.
The learned Magistrate had an entry condition report that showed the home was clean when Mr Shaw and Ms Ingle took possession. He also had photos that showed the home was not clean when they left. Mr and Mrs Sleight were entitled to obtain, and charge for, a bond clean. On the evidence before the Magistrate, a contrary was an error, and would result in a substantial injustice to Mr and Mrs Sleight. In those circumstances, leave to appeal is granted.
Mr Shaw and Ms Ingle shall pay Mr and Mrs Sleight $770 for a bond clean. The bond was $1,080. The learned Magistrate ordered Mr Shaw and Ms Ingle pay for the carpet treatment of $198. Therefore, they should have paid a total of $968, leaving a balance of $112 from the bond. Mr Shaw and Ms Ingle should have received the balance of the bond.
Orders
Leave to appeal should be granted and the appeal allowed. The decision of 27 May 2013 is set aside, and Mr and Mrs Sleight must pay Mr Shaw and Ms Ingle $112 within 21 days of the date of this judgment.
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