Sol Theo as Trustee v Birrer
[2013] QCATA 344
•10 December 2013
| CITATION: | Sol Theo as Trustee v Birrer [2014] QCATA 344 |
| PARTIES: | Sol Theo as Trustee (Appellant) |
| v | |
| Adrian Birrer (First Respondent) Marketta Birrer (Second Respondent) Robert Wockner (Third Respondent) |
| APPLICATION NUMBER: | APL344-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 28 November 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr Forbes, Member |
| DELIVERED ON: | 10 December 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for leave to appeal is dismissed. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – residential tenancy – action for repayment of rental bond – counter application for rent and other items – findings of fact and credit – no issue of law – no appellable error in findings of fact - whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32 Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 308, s 331 JM v QFG [2000] 1 Qd R 373 In Re W (an infant) [1971] AC 682 |
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
At all material times the three respondents (“the Tenants”) rented residential premises owned by the applicant (“Theo”) at 56 Donald Street Clontarf, near Brisbane.
On 9 April 2013 the Tenants commenced proceedings in the Tribunal, claiming the sum of $2,400, being the amount of their rental bond.
On 22 April 2013 Theo responded by filing a counter-application alleging that the Tenants “failed to abide and conform with the relevant tenancy agreement” and claiming an unspecified amount for “the deprived amounts [to be] proven at the hearing”. Claim and counterclaim were heard and determined by Mr Hughes, Adjudicator, at Redcliffe on 6 May 2013.
It was then ordered that the Tenants pay to Theo the sum of $1,750, and that Theo pay the Tenants $650, being the balance of their bond.
Theo now seeks leave to appeal that decision, on the egregiously broad ground that the “Adjudicator erred extensively to the extent of his order being justifiably set aside”.
The appellant’s case is amplified in submissions filed on 11 September 2013. They annex 44 photographs, comments on disputed items, and assert that Theo is properly entitled to:
a) $1,200 for unpaid rent;
b) $1,200 as a penalty for terminating the tenancy without due notice;
c) $254.71 for water supplied;
d) $305.64 for repairs to windows;
e) $260 for pest control services;
f) $312 for “Bunnings dockets”;
g) $1,102 for cleaning and repairs;
h) $98 for filing fee
TOTAL $4,643.15 less $1,750 ex bond
AMOUNT CLAIMED $2,893.15
There is a transcript of 48 pages. An oath or affirmation was administered to Theo, Robert Wockner and Marketta Birrer.
The first matter canvassed was the claim of $1,200 for rent. Theo stated that the weekly rent was $600, and that it was in arrears for 2 weeks. The tenant Wockner replied that, as two weeks’ rent was paid in advance when they moved in, there was no rent owing when they left.[1]
[1] Transcript of hearing 6 May 2013 (“Transcript”) page 11.
Turning to the penalty claim ($1,200) Theo produced a Form 13 (notice of intention to leave).[2] Wockner replied that “they actually brought that form on the day we did the handover.”, but two weeks earlier, the Tenants gave notice in a telephone call.[3] They regarded the rent as excessive.[4]
[2] Residential Tenancies and Rooming Accommodation Act 2008 (RTA) s 308.
[3] Transcript pages 12-13.
[4] Transcript page 15 (Mrs Birrer).
At that point the Adjudicator stated[5] that, as written notice was not given until 3 or 4 March 2013, the tenancy remained alive, and rent continued to accrue for another 14 days. The Tenants conceded the point.[6]
[5] Transcript page 14, referring to RTA s 331.
[6] Transcript page 14: “Okay, so the phone call that I made was invalid” (Birrer)
Theo was unable to produce a water efficiency certificate to evidence the claim for water charges ($254.71).[7]
[7] Transcript page 17.
The Tribunal then dealt with the claim for window repairs ($305.64). Theo produced his exit report. The Adjudicator found it difficult to clarify Theo’s evidence on this point, but it eventually transpired that he had an invoice referring to broken bedroom windows. Wockner denied that they were broken when the Tenants left, and produced an exit report dated 4 March 2013, written by the Tenants, and which (according to Wockner) Theo refused to sign.[8] Theo admitted that, but said that the Tenants’ report was informal, as it used the lessor’s column instead of the tenants’. (Subsequently he denied receiving a tenants’ report.[9]) Each party appealed to photographic evidence. Theo accused Wockner and Birrer of perjury.[10]
[8] Transcript page 23.
[9] Transcript pages 25, 26.
[10] Transcript 26.
The Tribunal moved to the next item, the pest control claim ($260). Theo produced an appropriate invoice. The Adjudicator observed that it was the Tenants’ responsibility. The Tenants acquiesced.[11]
[11] Transcript page 26.
The Adjudicator reproved Theo for interrupting, not for the first time. Discussion then turned to $312.80 for “painting and repairs” and $1,012 for “labour”.[12] Invoices (not previously seen by the Tenants) were produced. Theo explained that these moneys were spent on remedying damage to a door, a flymesh screen, a laundry door, disposal of rubbish etc.[13] There ended Theo’s evidence of his claims.[14]
[12] Transcript pages 27-28. In the appellant’s submissions these were respectively
described as “Bunnings’ dockets” and “cleaning and repairs”.
[13] Transcript 29-30.
[14] Transcript page 31.
After a preliminary skirmish, attention turned to the Tenant’s claim for a full refund of their bond –
Theo: They’re claiming – besides the $2,400 bond, they’re claiming $500 additional money owing by us.
Birrer: No, I’m not.
Theo: You look up the –
Adjudicator: Mr Theo, don’t tell me what they are going to say and don’t tell me what to [do] ... At the start of this hearing I asked the tenants what they were claiming ... $2,400, that’s what they said .... That’s it. Don’t waste this tribunal’s time talking about things that are not in issue ...
Theo: I wish to draw the tribunal’s attention for their credibility ... their credibility is at stake because they have shown things that are irrelevant to the case.[15]
[15] Transcript pages 31-32.
Theo’s case then took a new lease of life: “It just dawned on me there are a couple of more items that I have to claim”. But apparently they were included in the “Bunning expenses” and the “painting and cleaning”, already considered.[16] The Tenants denied removing curtain rods and removing batteries from smoke alarms. Ceilings were mildewed when they moved in. Damage to flyscreens, a stove and dirty ceiling fans was denied. In answer to the claim for rubbish disposal, Birrer said that she made about 15 trips to the dump before they left. They did not damage shed doors, she said, because there were no such doors. An allegedly damaged drain pipe was missing when they arrived.
[16] Transcript page 33.
Theo tendered an affidavit purporting to verify his entry report, and the Adjudicator proceeded to give his decision. Having inspected Theo’s rental ledger, and a “bundle of bank statements” adduced by the Tenants he –
... was not satisfied in the absence of any corroborative evidence that [the ledger] is ... evidence by itself of the days till when the rent was paid. This is because the document itself is not fully particularised or columned. It merely states dates and amounts paid. There are no receipts tendered by the landlord. ... It is not for the tenants to disprove the landlord’s claim. ... I am not satisfied that the landlord has proven the claim on the balance of probabilities that the tenants did not pay the rent until 4th March 2013. Consequently, the amount I award for rent arrears is $1,200.
It is clear enough that the amount of $1,200 for “arrears” refers the moneys payable for failure to give due notice. The Tenants admitted liability for that amount.[17] As for the rejection of the other claim for arrears, the decision is simply one of fact, based on the Adjudicator’s assessment of the weight of competing evidence. That was a decision entirely for him, and not one that an appeal tribunal is entitled to revisit. It is not an appellable error to prefer one version of an event to the other, and it will be seen that a reason for the preference was given.
[17] Transcript pages 14, 15.
The claim for water charges was disallowed on the eminently reasonable basis that Theo could not produce any supporting document.[18]
[18] Transcript page 45.
The exit reports of the parties differed on the subject of the broken windows. Theo alleged that there were two, but his own exit report (not signed by the Tenants) recorded only one broken window. In the event, the Adjudicator awarded $140 – an unimpeachable decision.[19]
[19] Transcript page 45.
Theo’s claim for pest control services was allowed in full.[20]
[20] Transcript page 45.
Theo’s claims for curtain rods, “damage/mess” and a flyscreen door. On a comparison of each party’s photographs, which showed “little discrepancy” mildewed ceilings and fans were dismissed as a long-term maintenance issue, and a door scratched by a dog (permitted on the premises) was treated as fair wear and tear. On the basis of the entry report, claims for a faulty oven door, pre-existing rubbish, absent drainpipe and missing shed doors were dismissed. It would be fanciful, indeed frivolous and vexatious, to contend that these findings of fact were unreasonable, or not open upon the evidence. The Adjudicator was unimpressed by Theo’s aspersions upon the credit of the Tenants – a line of attack which, in at least one instance, was taken to the extreme of describing them as perjurers.[21]
[21] Transcript page 47.
In the event, and overall, the Adjudicator allowed $1,750 of the landlord’s claim. In a case which, had it not been firmly directed, could easily have degenerated into a confusing wrangle, the Adjudicator patiently guided the evidence into clearly separate, orderly compartments, and gave reasons for his decision on each issue (as I have attempted, at some length, to demonstrate). It is impossible to identify any legal error, and the findings of fact and weight are uniformly reasonable, and entirely within the province of the Adjudicator. I have not encountered a case in which appellable error is less apparent.
Faced with applications of this kind, the Tribunal can only reiterate patiently and in plain terms, the limits of an appeals and applications for leave to appeal. An application for leave to appeal is not an opportunity for a re-trial, or for “second guessing” reasonable findings of fact at first instance. Indeed, the very requirement to obtain leave is to preclude attempts to retry cases on the merits, or to introduce evidence or arguments that might have been led in the first place, but in fact were not. A factual conclusion cannot be treated as infected by legal error unless it is supported by no evidence whatever, or unless it is clear, beyond serious argument, that it is wrong. If the appeal tribunal merely disagrees with a factual view of a tribunal (as here I do not) this does not show that a decision based on it is legally erroneous.[22] It is not nearly enough for an applicant to express disappointment, or to entertain a subjective feeling that justice has not been done[23], or that a contrary witness is lying. It is not an appellable error to prefer one version of the facts to another, or to give less weight to one party’s case than he or she thinks it should have received. Findings of fact will not normally be disturbed if they have rational support in the evidence, even if another reasonable view is available.[24] Where reasonable minds may differ, a decision cannot properly be called erroneous, simply because one conclusion has been preferred to another possible view.[25] Occasionally leave is granted so as to ventilate some question of general public interest[26], but this is by no means a case of that kind.
[22] JM v QFG [2000] 1 Qd R 373 at 391 per Pincus JA.
[23] Robinson v Corr [2011] QCATA 302 at [7].
[24] Fox v Percy (2003) 214 CLR 118 at 125-126.
[25] Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at
[131]; In Re W (an infant) [1971] AC 682 at 700 per Lord Hailsham; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025.
[26] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk
Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580; Paradis v Settlement Agents Supervisory Board (2007) 33 WAR 361 at 372.
The application is singularly devoid of merit, and must be dismissed.
ORDER
The application for leave to appeal is dismissed.
0
5
0