Snell v Morgan

[2011] QCATA 316

CITATION: Snell v Moynihan [2011] QCATA 316

PARTIES:	Casey Snell t/as Ray White Bulimba (Applicant/Appellant)
v
Zachary John Moynihan (Respondent)

APPLICATION NUMBER: APL226-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Richard Oliver, Senior Member

DELIVERED ON: 11 November 2011

DELIVERED AT: Brisbane

ORDERS MADE: Leave to appeal is refused.

CATCHWORDS:

Minor Civil Dispute – where no error found in the decision of the primary decision maker – where applicant attempts to re-agitate the same issues

Queensland Civil and Administrative Tribunal Act2009, s 142(3)

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. 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.

1. 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.

1. 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.

1. 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. 

1. 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.

1. 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).

1. The applicant does not attempt to identify any error on the part of the learned Adjudicator in coming to the decision that she did other than contend that they are dissatisfied with the result and this Tribunal should come to a different decision. 

1. Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief.  Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?

1. In accordance with directions made both parties have filed submissions.  Ray White’s submissions re-agitate the very issues that were before the learned Adjudicator rather than attempt to show any error on her part. 

[10]  It is not for this Appeal Tribunal to substitute its own decision on the evidence that was put before the Tribunal at the initial hearing.  This is not an opportunity for the parties to re-litigate or re-argue their various positions.  For leave to appeal to be granted an error of law must be identified or the Appeal Tribunal must be satisfied that a substantial injustice requires correction. 

[11]  On the evidence that was before her and having read the transcript of evidence and looked at the various exhibits, no error is apparent which would warrant this Appeal Tribunal coming to a different conclusion. 

[12]  In the circumstances, leave to appeal must be refused.