Tubaro v Springall
[2010] QCATA 28
•28 June 2010
| CITATION: | Tubaro v Springall [2010] QCATA 28 |
| PARTIES: | Alexandra Tubaro (Applicant) |
| v | |
| Rachael Springall (Respondent) |
APPLICATION NUMBER: APL064-10
| MATTER TYPE: |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Justice Alan Wilson, President |
DELIVERED ON: 28 June 2010
DELIVERED AT: Brisbane
ORDERS MADE: Application for leave to appeal dismissed
| CATCHWORDS : | RESIDENTIAL TENANCIES – REDUCTION IN RENT – COMPENSATION – where dispute over condition of premises prior to tenancy , completion of repair work and damage to premises – where adjudicator ordered landlord to pay tenant compensation in the form of a reduction in rent resulting from condition of premises and failure to complete maintenance works – whether decision against weight of evidence PROCEDURAL FAIRNESS – REFUSAL TO ADMIT EVIDENCE – where landlord alleged evidence from video supported her allegations of the condition of premises – where adjudicator relied on existing photograph evidence from both parties and did not consider the video – whether video should have been admitted into evidence – whether proceedings tainted by procedural unfairness Queensland Civil and Administrative Tribunal Act 2009, ss 3(b), 28(3)(b), 94, 95(2)(a), 135(1), 142(3) |
REASONS FOR DECISION
Ms Tubaro owned residential premises on Sinclair Drive in Carole Park which she rented to Ms Springall.
On 20 July 2009 Ms Springall lodged an application in the Small Claims Tribunal (which has now been subsumed into QCAT) seeking various repairs to the kitchen and bedrooms, reimbursement of $88.00 for urgent gas repairs, and compensation in the form of a reduction in the weekly rent to reflect the alleged poor condition of the premises.
Ms Tubaro filed a cross-application in the Ipswich Magistrates Court seeking compensation in the amount of $7,500 for alleged damage caused to the kitchen during Ms Springall’s tenancy. Ms Tubaro then re-filed the same cross-claim on 9 December 2010 in the Richlands Magistrates Court. This duplication caused, unsurprisingly, some confusion.
One claim was partially heard in the Small Claims Tribunal at Ipswich on 12 November 2009, when it was ordered that the lease be terminated from 18 November; that Ms Springall pay Ms Tubaro the sum of $432 as compensation for the early termination of the lease; and that the claim for a reduction in rent, and any other new claim, be adjourned to a later date and heard together with the cross-claim. The hand written reasons of the Magistrate indicate that the claim for reduction in rent was adjourned because it had not been first referred to a compulsory conciliation process under s 416 of the Residential Tenancies and Rooming Accommodation Act 2008 (RTRA).
By the time the matter was listed for a hearing in QCAT on 4 March 2010, Ms Springall had paid Ms Tubaro the sum of $432 for the early release fee; her original claim had been re-listed; and the claim and cross-claims were heard together.
Ms Tubaro initially failed to realise that her two cross-claims were essentially one and the same and it was not until the learned QCAT adjudicator stood the matters down to resolve the confusion that she recognised that her second cross-claim was a duplication of the first.
Ms Springall presented evidence showing she had requested from Ms Tubaro (through two separate Form 11 Notices to Remedy Breach) that certain defects in the kitchen and bedrooms be repaired, including a stain in the master bedroom ceiling and problems with items and fixtures in the kitchen. She tendered photographs showing that the requested repair work had not been properly completed by the time the tenancy was terminated on 12 November.
Ms Tubaro also submitted photographs which, she alleged, showed that any damage caused to the premises occurred during Ms Springall’s tenancy; a quote for $12,845 to repair the kitchen; and voluminous handwritten notes annexing various receipts for purchases of minor household items from hardware and grocery stores, and petrol stations. She also gave evidence that Ms Springall was paying slightly less, in weekly rent, than market value. Ms Tubaro also sought to present video evidence about the bedroom ceiling, but the adjudicator declined to receive it.
After considering the photographic evidence and hearing evidence and submissions from Ms Springall and Ms Tubaro the learned adjudicator ordered that Ms Springall should be compensated in the sum of $400, calculated as a reduction in rent of $10 per week over the course of the tenancy; that Ms Tubaro’s first cross-claim (840/09) be dismissed for lack of evidence (in failing to show that Ms Springall caused any new damage to the kitchen that had not already been present during the course of her tenancy); that the second cross-claim (10/09) also be dismissed for being merely a duplicate of the first; and that the Residential Tenancies Authority pay out to Ms Springall the full bond in the amount of $1,040.
Ms Tubaro sought leave to appeal the adjudicator’s decision. Leave is necessary: Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), s 142 (3)(a)(i). By a further QCAT direction, it was directed that the application for leave would be determined by written submissions, which both parties have exchanged and filed.
Attached to Ms Tubaro’s application for leave to appeal are three pages of handwritten submissions totalling twenty-two (22) grounds of appeal of which only four, however, represent distinct grounds – the remaining eighteen are near or exact repetitions of them.
The four grounds may be summarised as follows: (i) the learned adjudicator erred in his application of s 416 of the RTRA by permitting the hearing to proceed where (the applicant alleges) the respondent did not first attempt to mediate her claim through the mandatory conciliation process; (ii) the alleged maintenance repairs requested by the respondent were either unnecessary, or fully completed; (iii) there was a lack of procedural fairness arising from the adjudicator’s refusal to consider all or some of the applicant’s evidence; and (iv) that the original Order of the Tribunal provided to the applicant did not show that she was to pay Ms Springall compensation of $400, which she did not become aware of until eighteen days after the hearing.
This last contention arises from the fact that Ms Tubaro was removed from the proceeding while the adjudicator was giving his final reasons, and was not present to hear the final orders and, initially, received an incorrect copy of the order.
Ms Tubaro’s submissions do not allege any want of procedural fairness arising from her removal which, the transcript shows, occurred when she repeatedly interrupted the adjudicator as he orally gave his ex tempore reasons after the hearing had ended, and after he had indicated that he would do so. Her conduct was intolerable and inexcusable and no criticism could be directed to the adjudicator for his refusal to countenance it.
As to Ms Tubaro’s first contention, the learned adjudicator noted that on 12 November 2009 the Small Claims Tribunal had adjourned a hearing in the matter to a later date in order to allow for the conciliation process to take place. After referring to correspondence from the Residential Tenancies Authority the adjudicator was satisfied that the conciliation did in fact take place on or about 4 December 2009 – well before the QCAT hearing. This was confirmed on oath by Ms Springall. The finding that s 416 of the RTRA had been complied with was, then, unsurprising and in plain accord with the evidence.
As to the necessity for, and completion of, the repair work the learned adjudicator was presented with photographic evidence from both parties depicting the condition of the bedroom ceiling, and the kitchen. He found that the discolouration on the bedroom ceiling had not been painted over and that the poor condition of the kitchen pre-dated Ms Springall’s tenancy. In doing so he indicated that Ms Tubaro had failed to persuade him that the tenant was responsible for the condition of the kitchen. That finding was plainly open, and consistent with the evidence he had.
Ms Tubaro’s complaint about a want of procedural fairness concerns the adjudicator’s refusal to admit video evidence about the bedroom ceiling. The learned adjudicator had admitted photographs in support of her allegations about the alleged need for repairs to the ceiling, and damage to the kitchen. She asserted that the video further supported her photographic evidence[1] that the bedroom ceiling was freshly painted over and repaired. As the learned adjudicator noted in his reasons, however, the allegation was inconsistent with the photographs themselves.
[1] Transcript of proceedings, p 29
Whether it is appropriate or necessary to admit every item of evidence during a proceeding is within the discretion of the Tribunal: QCAT Act, s 28(3)(b). In circumstances where there is already sufficient evidence about a matter in dispute, the Tribunal may refuse to allow a party to present additional evidence about that issue: QCAT Act, s 95(2)(a). This fits comfortably with QCAT’s obligation to deal with disputes in a way that is accessible, fair, just, economical, informal and quick: QCAT Act, ss 3(b) and 28(3)(d).
Although the learned adjudicator’s finding about the attempted tender of the video is not couched in these specific terms, it is obvious he formed the view that the existing photographic evidence, and the testimony of the parties, was sufficient to make a finding about the condition of the bedroom ceiling and that, in those circumstances, the video evidence would be mere duplication; and, from Ms Tubaro’s submissions about it, that it could not strengthen her case. His refusal to receive it was, in those circumstances, plainly justified and no want of procedural fairness is apparent.
Finally, the fact that the original order provided to Ms Tubaro did not express the full terms of the decision of the adjudicator is the obvious result of an error. QCAT has the power to correct a decision if it contains a clerical error or defect in form: QCAT Act, s 135(1). Ms Tubaro was later provided with a correct copy of the Order, albeit some time after the hearing, but prior to the time limit for her application for leave to appeal the adjudicator’s decision. No prejudice or disadvantage accrued to her.
The decision accords with the weight of the evidence (which was sufficiently and appropriately traversed by the learned adjudicator in his reasons) and none of the applicant’s grounds for leave to appeal are made out. There is, therefore, no question of importance about which further argument is desirable or in respect of which a decision of the Appeal Tribunal would be of public benefit.[2] Leave to appeal is, then, refused.
[2] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388; McIver Bulk Liquid Haulage
Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
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