Stockdale & Leggo v Gordon - [2017] QCATA 112

CITATION:	Stockdale & Leggo v Gordon [2017] QCATA 112
PARTIES:	Stockdale & Leggo Caloundra (Appellant)
v
Craig Gordon (Respondent)
APPLICATION NUMBER:	APL112-17
MATTER TYPE:	Appeals
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Member Gordon
DELIVERED ON:	17 October 2017
DELIVERED AT:	Brisbane
ORDERS MADE:	1. Leave to appeal is granted. 2. The matter is remitted to the tribunal for reconsideration of the claims about the floor and blinds. 3. The claims about the floor and blinds shall be treated by the tribunal as if they were brought by counter application by Stockdale & Leggo against Craig Gordon in Maroochydore MCDT 61/17. 4. In the remitted hearing, the tribunal may take into account the documentary material lodged in the original claim and in the appeal, and the evidence given by the parties at the hearing on 24 March 2017. 5. To enable that to happen, a copy of the transcript and the submissions on the appeal file shall be provided to the tribunal for its remitted hearing.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where bond claim heard by the tribunal – where tribunal refused to take into account quotes to repair where the repair had not been carried out and the premises had been relet – where tribunal told the applicant that they could apply to reopen when repairs were eventually done – whether errors of law LANDLORD AND TENANT – COVENANTS TO REPAIR – MEASURE OF DAMAGES FOR BREACH – where floor and blinds damaged by tenant – where tenant had done some repairs which lessor considered unsatisfactory – where no further repairs had been carried out by lessor – correct approach to the assessment of compensation Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 146 Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 188 Davidson v J S Gilbert Fabrications Pty Ltd [1986] 1 Qd R 1 Dimond v Lovell [2002] 1 AC 384 Gagner Pty t/as Indochine Café v Canturi Corporation Pty Ltd (2009) 262 ALR 69 Johnson v Perez (1988) 166 CLR 351 Robinson v Harman (1848) 1 Exch 850
APPEARANCES:

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

REASONS FOR DECISION

When Craig Gordon’s residential tenancy ended, he was in dispute with the lessor’s real estate agents Stockdale & Leggo Caloundra, about what should happen to the rental bond held by the Residential Tenancies Authority. He applied to the tribunal to have this dispute resolved.
At the hearing on 24 March 2017 before Justices of the Peace, Stockdale & Leggo were successful in their claims from the bond in respect of rent and electricity, but failed in their claims in respect of damage to the floor and to the blinds.
In this appeal they say that the tribunal erred in the way it approached the claims about…

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

Case: [2017] QCATA 112
Decision Date: 17 October 2017

CaseChat Overview and Summary

Stockdale & Leggo, the appellants, appealed against a decision of a tribunal which dismissed their claim for damages in the sum of $3,000 for breach of the covenant to repair. The respondent, Craig Gordon, had leased premises to the appellants. The appellants claimed that the floor and venetian blinds were damaged, and that they had carried out some repairs, but the respondent did not carry out any further repairs. The respondent argued that the repairs carried out by the appellants were unsatisfactory and that the premises had been relet. The tribunal dismissed the appellants’ claim, holding that they could not take into account the quotes for repairs as the repairs had not been carried out and the premises had been relet. The tribunal also told the appellants that they could apply to reopen the matter when the repairs were eventually done.

The legal issues in the appeal were whether the tribunal had erred in law in refusing to take into account the quotes to repair where the repair had not been carried out and the premises had been relet, and whether the tribunal had erred in law in its approach to the assessment of compensation for the damage to the floor and blinds. The appellants submitted that the tribunal had erred in law in refusing to take into account the quotes to repair where the repair had not been carried out and the premises had been relet. The tribunal had been wrong to say that it could not take into account the quotes because they were hypothetical and did not represent the actual cost of the repairs. The tribunal had also been wrong to say that the fact that the premises had been relet meant that the quotes were irrelevant. The appellants submitted that the tribunal had also erred in law in its approach to the assessment of compensation for the damage to the floor and blinds. The tribunal had not taken into account that the appellants had carried out some repairs and that the respondent had not carried out any further repairs. The tribunal had also not taken into account that the respondent had breached the covenant to repair.

The appeal was allowed. The tribunal had erred in law in refusing to take into account the quotes to repair where the repair had not been carried out and the premises had been relet. The tribunal had been wrong to say that it could not take into account the quotes because they were hypothetical and did not represent the actual cost of the repairs. The tribunal had also been wrong to say that the fact that the premises had been relet meant that the quotes were irrelevant. The tribunal had also erred in law in its approach to the assessment of compensation for the damage to the floor and blinds. The tribunal had not taken into account that the appellants had carried out some repairs and that the respondent had not carried out any further repairs. The tribunal had also not taken into account that the respondent had breached the covenant to repair. The matter was remitted to the tribunal for reconsideration of the claims about the floor and blinds. The claims about the floor and blinds shall be treated by the tribunal as if they were brought by counter application by Stockdale & Leggo against Craig Gordon in Maroochydore MCDT 61/17. In the remitted hearing, the tribunal may take into account the documentary material lodged in the original claim and in the appeal, and the evidence given by the parties at the hearing on 24 March 2017. A copy of the transcript and the submissions on the appeal file shall be provided to the tribunal for its remitted hearing.

Orders

Orders of the court

1. Leave to appeal is granted.

2. The matter is remitted to the tribunal for reconsideration of the claims about the floor and blinds.

3. The claims about the floor and blinds shall be treated by the tribunal as if they were brought by counter application by Stockdale & Leggo against Craig Gordon in Maroochydore MCDT 61/17.

4. In the remitted hearing, the tribunal may take into account the documentary material lodged in the original claim and in the appeal, and the evidence given by the parties at the hearing on 24 March 2017.

5. To enable that to happen, a copy of the transcript and the submissions on the appeal file shall be provided to the tribunal for its remitted hearing.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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