Tahana v Simpson
[2010] QCATA 116
•17 December 2010
| CITATION: | Tahana v Simpson [2010] QCATA 116 |
| PARTIES: | Maurice and Elizabeth TAHANA (Applicants/Appellants) |
| v | |
| Brent and Leane SIMPSON (Respondent) |
APPLICATION NUMBER: APL260 -10
| MATTER TYPE: |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Justice Alan Wilson, President |
DELIVERED ON: 17 December 2010
DELIVERED AT: Brisbane
ORDERS MADE: | Leave to appeal is refused |
| CATCHWORDS : | RESIDENTIAL TENANCY DISPUTE – COMPENSATION – FINDINGS OF FACT – LEAVE TO APPEAL – where Magistrate ordered the appellants to pay compensation to the respondents for arrears in rent and for various other expenses – where the appellants allege that the Magistrate failed to give them an opportunity to review all the evidence and present their case – where the appellants allege that the Magistrate made incorrect findings of fact – whether appellants denied procedural fairness – whether any error of fact – whether leave should be granted Queensland Civil and Administrative Tribunal Act 2009, 142(3) Chambers v Jobling (1986) 7 NSWLR 1, cited Dearman v Dearman (1908) 7 CLR 549 , cited Fox v Percy (2003) 197 ALR 201, cited Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, applied |
APPEARANCES and REPRESENTATION (if any):
By order of the Appeal Tribunal the application for leave to appeal (and appeal, if leave is granted) were directed to be determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Mr and Mrs Tahana were tenants at premises owned by Mr and Mrs Simpson. By a previous order of this Tribunal the residential tenancy agreement between the parties was terminated and the Tahanas were ordered to vacate the premises by 21 June 2010. The Tahanas vacated, but on the 25th.
The Simpsons commenced a Minor Civil Dispute claim against the Tahanas seeking compensation for rental arrears for the extra days they remained in possession of the premises and for various other costs including, relevantly, compensation for general cleaning expenses, replacement of a glass window pane and for the repair of a hole in the kitchen floor that was supposedly caused by water damage.
The matter was heard and decided by a Magistrate acting as a QCAT Adjudicator. The transcript of the hearing shows that Mr Tahana and Mrs Simpson gave oral evidence on oath, and that they each submitted documentary evidence. At the conclusion of the hearing, the Tahanas were ordered to pay only a portion of the compensation costs sought by the Simpsons.
The Tahanas seek to leave to appeal that decision. Leave is necessary: Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), s 142(3)(a)(i). Leave to appeal is ordinarily granted where there is a reasonably arguable case of error in the primary decision and leave is necessary to correct a substantial injustice to the applicant caused by that error[1]; and 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[2].
[1]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 at [6]
[2]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.
The Tahanas contend that they were denied natural justice because they were not given an opportunity to review the evidence tendered by Simpsons, or a fair opportunity to present their evidence; and, that the learned Magistrate’s findings that compensation should be awarded for the window pane and the hole in the kitchen floor were based on lack of evidence. This last contention stems from the Tahanas allegation that they were not provided with an Entry Condition Report and, had they been, they would have presented it as evidence to refute the claims at the hearing.
The transcript of the hearing shows that the first two allegations are without foundation. The learned Magistrate gave the Tahanas the opportunity to view and comment on the invoices tendered by the Simpsons; and he also ensured that they had the opportunity to contest each of the Simpsons’ various claims for compensation.
In terms of the Tahanas final contention, it is commonly understood that findings of fact by the primary decision-maker will usually not be disturbed on appeal if the facts inferred are capable of supporting the conclusions reached,[3] and are not contrary to compelling inferences[4]. As such, my duty is to determine whether there is any error in the primary decision, not to minutely dissect the learned Magistrate’s findings about where the truth lay between the competing versions given by the parties[5].
[3]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 197 ALR 201 at
207, 208
[4]Chambers v Jobling (1986) 7 NSWLR 1 at 10
[5]Fox v Percy (2003) HCA 22 at (32) per Gleeson CJ Gummow and Kirby JJ
It appears that it was common ground between the parties that the hole in the kitchen floor was a result of water damage caused by a leak from the refrigerator. Disagreement centred on who should be liable for repair expenses. Mr Tahana argued that it should be the Simpsons because the spot where the hole eventually appeared, he alleges, was soft at the time they moved in and thus a pre-existing problem not of their doing. However, he conceded that they did not approach the Simpsons about this issue until six months after the start of the tenancy. He then informed the Simpsons about the hole in floor, after his wife created it by putting her foot through it.
The learned Magistrate’s reasons, although terse, reveal that he considered all of the evidence given by the parties. Implicit in his decision is the finding that the hole in the kitchen floor should be attributable to the actions of the Tahanas, whether it was the result of directly creating the conditions that led to the hole or by allowing the leak to continue, and thereby exacerbating any pre-existing damage.
In either case, the learned Magistrate’s conclusion that the Tahanas should be liable for the repair costs was plainly open on the evidence and there is nothing in the transcript of the hearing or the appeal submissions from the Tahanas to suggest that the finding was contrary to any compelling inferences. The absence of an Entry Condition Report is no justification for waiting until the eleventh hour to address any pre-existing defects in the rented premises, especially if they affect the health and safety of those residing in it.
The Tahanas have not, then, demonstrated any error in the learned Magistrate’s decision; nor have they shown that there is any question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage. For these reasons, the application for leave to appeal should be refused.
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