Mr Moynihan was a tenant in rental premises managed by the applicant at 1/69 Wynnum Road, Morningside. The tenancy agreement stipulated the term was for a period of 12 months concluding on 25 March 2011. Mr Moynihan paid a rental bond of $2,240.00.
At the conclusion of the tenancy the Residential Tenancy Authority paid out the total bond to the lessor. The payment was made 14 days after the applicant requested the bond to be paid without notification to Mr Moynihan.
Mr Moynihan then commenced a proceeding in the minor civil disputes jurisdiction of the Tribunal claiming $2,240.00 from Ray White which was in effect a return of the bond.
The matter came on for hearing before a Tribunal Adjudicator on 2 June 2011. Ray White contended that they were entitled to keep the bond because they had incurred expenses in reinstating the property. Those expenses included $1,760.00 for gardening and $700 for cleaning, which included carpet cleaning.
Evidence was taken from Ms Snell for the applicant and Mr Moynihan and Ms Winch, another tenant. At the conclusion of the hearing the learned Adjudicator gave reasons in which she set out why she rejected Ray White’s justification for the gardening cost and the cleaning cost. She found that, having regard to the entry report and photographs put before her, the tenants have left the property, save for normal wear and tear, in the condition it was at the commencement of the lease.
From that decision Ray White has filed an application for leave to appeal or appeal. Leave to appeal is necessary.[1] The grounds for appeal are interesting. They assert matters of fact in that when the tenants vacated the property it was dirty, the gardens a mess and the carpet needed cleaning. The grounds then include an explanation as to how Ray White came to have the bond. The relief sought is also interesting in that Ray White asks the Tribunal for a fair decision on the bond dispute and a different Judge to look at it as the three items claimed are fair and they would like it to be reconsidered.
[1] QCAT Act section 142(3).
The applicant does not attempt to identify any error on the part of the learned Adjudicator in coming to the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Snell v Morgan [2011] QCATA 316
Case
[2011] QCATA 316
Decision Date
CaseChat Overview and Summary
The matter before the court was an application by Snell for leave to appeal a decision of the Magistrates Court of Victoria in a minor civil dispute concerning the ownership of a painting. Snell had originally brought an action against Morgan for the recovery of the painting. The Magistrates Court found in favour of Morgan and Snell sought leave to appeal this decision to the Court of Appeal. The legal issues before the court were whether there was any error in the decision of the primary decision maker, and whether the applicant was attempting to re-agitate the same issues. The court found that there was no error in the decision of the Magistrates Court and that Snell was attempting to re-agitate the same issues. The court held that there was no basis for an appeal and refused Snell's application for leave to appeal. The court found that Snell had failed to identify any error in the decision of the Magistrates Court and had merely sought to re-agitate the same issues that had already been considered and determined. The court held that the application for leave to appeal was an abuse of process and refused leave to appeal. The court made no orders as to costs.