Thompson v Collison

[2017] QCATA 123

CITATION:

Thompson v Collison [2017] QCATA 123

PARTIES:

Sally Jayne Thompson

(Appellant)

v

Trinity Jayde Collison

(Respondent)

APPLICATION NUMBER:

APL158-17

MATTER TYPE:

Appeals

HEARING DATE:

24 October 2017

HEARD AT:

Brisbane

DECISION OF:

Member Howe

DELIVERED ON:

14 November 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1.    Leave to appeal is granted. 

2.    The appeal is allowed. 

3.    The decision of 18 April 2017 is set aside. 

4.    The matter is returned to the tribunal for determination of value of the replacement air-conditioning unit with the hearing of such additional evidence as deemed necessary by the tribunal.

CATCHWORDS:

APPEAL AND NEW TRIAL
APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where tribunal at first instance made an error of law – where lessor claimed for cost of replacement of an air-conditioning unit – cost of replacement – fair wear and tear – depreciated value

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s188(4)

Pickering v McArthur [2005] QCA 294

APPEARANCES:

This matter 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

1. Ms Thompson was a tenant of premises owned by Ms Collison.  The tenancy commenced in December 2015 and ended on 5 December 2016.

2. There was a service scheduled for 9 December 2016 for an air-conditioning unit at the premises.  The refrigeration mechanic who attended found the unit at the back of the house behind a bedroom damaged.  Someone or something had damaged the unit’s air-cooling fins.

3. Ms Collison said the unit was new as at early December 2015 immediately before Ms Thompson moved in.  An exit condition report had been prepared on 5 December 2016 and there was no mention of damage to an air-conditioning unit.

4. Ms Collison brought proceedings in the tribunal to recover the costs of replacement of the air-conditioning unit.  Ms Thompson said she knew nothing about damage to the unit and suggested there was a period of some 4 or 5 days between her leaving and the refrigeration mechanic going out to service the unit when the unit could have been damaged.  The tribunal found that despite there being no mention of damage to the air-conditioner in the exit condition report, the damage was done during the currency of the tenant’s occupation, the unit was new at the start of the tenancy and that the tenant should be responsible for the costs of replacement.  The bond of $1,840 was ordered to be paid to the lessor plus a further sum of $1,022.50 representing the balance cost of a replacement unit and the filing fee of $112.50.

5. Ms Thompson now seeks leave to appeal that decision.  Given this is an appeal from a decision made in the tribunal’s Minor Civil Dispute jurisdiction, leave to appeal must first be obtained.[1] 

   [1]QCAT Act, s142(3)(a)(i).

6. Leave to appeal will usually be granted only where an appeal is necessary to correct a substantial injustice to…