van den Boogaard v Lassen Pty Ltd

[2010] QCATA 92

CITATION: van den Boogaard & Anor  v Lassen Pty Ltd [2010] QCATA 92

PARTIES:	Michael van den Boogaard and Erikai Guerrini (Applicants/Appellants)
v
Lassen Pty Ltd (Respondent)

APPLICATION NUMBER:            APL129-10               

MATTER TYPE:

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON:   6 December 2010

DELIVERED AT:   Brisbane

ORDERS MADE:  Application for leave to appeal refused

CATCHWORDS : 

RESIDENTIAL TENANCIES – COMPENSATION – where adjudicator awarded lessor portion of cleaning and repair expenses – where appellants allege adjudicator did not properly consider all of the evidence – whether any error by adjudicator

Queensland Civil and Administrative Tribunal Act 2009

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

1. This matter concerns a rental bond of $1,200.00 held in connection with a residential tenancy at 4/26 Lather Street Southport. Mr van den Boogaard and Ms Guerrini were the tenants. Lassen Pty Ltd is a company trading as Elliott Michaels Realtor, the agents for the owner of the premises, Walton Developments Pty Ltd.

1. Application was brought in QCAT’s Minor Civil Disputes jurisdiction by the agent on the owner’s behalf seeking orders that the tenants pay $1,328.29 comprised of rent arrears, cleaning and carpet cleaning expenses, and the cost of repairs to damage allegedly inflicted upon the premises during the tenancy.

1. The matter was heard and determined by a QCAT adjudicator at Southport on 3 June 2010. Mr van den boogaard and Ms Guerrini’s mother appeared, as did a representative of the real estate agent. All parties were sworn. The hearing proceeded in a generally informal but inquisitorial way with the parties traversing each of the landlord’s claims and giving oral evidence about them, and tendering some documentary evidence including invoices and photographs.

1. Eventually the learned adjudicator indicated that he would order the bond be paid out as to $768.29 in full satisfaction of the claims by the agent and landlord, with the balance of $431.71 to be paid out to the tenants.

1. The tenants are not happy with that decision and have sought leave to appeal it. They have provided a detailed statement and a large bundle of documents including many photographs of the premises. The landlord’s agent has reciprocated, in similar excessive detail. In any event, according to the tenants’ application to this Appeal Tribunal, their principal complaint is that the learned adjudicator only viewed evidence put forward by the agent, and did not fairly or fully consider their evidence.

1. There has been some regrettable delay in obtaining the transcript of the proceedings before the learned adjudicator, but it provides no support for the tenants’ assertions and, rather, undermines them. It is true that, after the matter had been proceeding for some considerable time and each of the items claimed by the agent had been discussed at length, the learned adjudicator indicated that his order would be on the lines discussed above – i.e., dividing the bond between the parties – but, when the tenants then complained that he had not looked at some of their photographs he agreed to do so. At that point he says:

…if you want me to look at the photos, I will, but I don’t think it will change my mind… I am happy to look at them…show me all the photos

1. It is plain from the several pages of transcript which follow that the learned adjudicator considered each of the photographs tendered by the tenants and allowed them to explain what they show. Although, in the upshot, he did not change his decision, the complaint that he did not look at the tenants’ evidence is groundless.

1. Because the original proceeding was in QCAT’s Minor Civil Disputes jurisdiction Mr van den Boogaard and Ms Guerrini need leave to appeal: QCAT Act, s 142(3)(a)(i). Leave to appeal will ordinarily only be granted 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; or, there is a reasonably arguable case of error in the primary decision and reasonable prospect of the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?

1. For the reasons discussed above there is no apparent error in the primary decision nor any indication that the tenants were the victim of an injustice, requiring correction. This was, on its face, a straightforward dispute about the quality of cleaning in premises at the end of a residential tenancy, and a condition of those premises and how, in the circumstances, a rental bond should be distributed. The learned adjudicator did not give oral reasons at the conclusion of his decision but, during the hearing itself, made observations and interim findings from which the parties clearly understood how, and why, he reached his conclusions.

1. These decisions of QCAT adjudicators in the busy environment of the Minor Civil Disputes jurisdiction cannot be subjected to inappropriate levels of scrutiny, or over-scrupulous analysis[1]. The jurisdiction is one in which the adjudicators are required to do the best they can to form views about credit, and the legal issues which arise in the many cases they must hear, under considerable pressure. 

   [1]See the comments of Spigelman CJ in Commissioner of Taxation v Baffsky [2001] NSWCCA 332 at [49]

1. Even without these considerations, however, nothing here suggests any injustice has fallen upon the tenants or that the adjudicator denied them a fair hearing. It needs to be remembered that he awarded the agent considerably less than its original claim and, in effect, made what he considered to be a fair division of the rental bond between the parties in way which reflected the strengths of their respective claims.

1. Leave to appeal is refused.