Vloedmans v Malseed - [2014] QCATA 174

CITATION:

Vloedmans v Malseed [2014] QCATA 174

PARTIES:	Cara Vloedmans (Applicant/Appellant)
v
Michael Malseed (Respondent)

APPLICATION NUMBER:

APL028 -14

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Thomas, President

DELIVERED ON:

14 July 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal granted.

2. Appeal allowed.

3. The decision of 19 December 2013 is set aside.

4. Cara Vloedmans shall pay Michael Malseed $4,484.60 within 28 days of the date of these orders.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY DISPUTE – where tenant’s claim for compensation – where lessor did not appear at hearing – whether grounds for reopening – where tribunal ordered 66 weeks’ compensation – where reasons for decision not clear – whether claim limited by s 419 RTRA – whether substantial reduction in amenity for 66 weeks - whether grounds for leave to appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 142(3)(a)(i)
Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 94, 419(3)

Pickering v McArthur [2005] QCA 294
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
Masinello v Parker & Anor (No.2)[2013] QCATA 325

APPEARANCES and REPRESENTATION (if any):

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

In August 2012, Mr Malseed rented a rural property from Mr and Mrs Vloedmans. By the end of the tenancy agreement, neither side was happy with the condition of the property and both lessor and tenant thought that the other was breaching tenancy obligations.
Mr Malseed gave Mrs Vloedmans a dispute resolution request on 23 September 2013. On 31 October 2013, Mr Malseed filed an application for compensation. He claimed a reduction in rent of $200 per week for 66 weeks plus an extra $200 per week for 12 weeks at the end of the tenancy. A Magistrate, sitting as a member of the tribunal, ordered Mrs Vloedmans pay Mr Malseed $15,884.60 compensation.
Mrs Vloedmans wants to appeal that decision on the bases that she had no notice of the hearing. She says that she has a compensation claim against Mr Malseed which she did not pursue because she was “happy to get rid of him”.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
[1]QCAT Act s 142(3)(a)(i).
[2]Pickering v McArthur [2005] QCA 294 at [3] per Keane JA.
Mrs Vloedmans’ application for leave to appeal is framed as an application for a reopening. The appeal tribunal may refer a matter to the tribunal, if it considers that the reasons for the application or appeal constitute…

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.

Continue reading Vloedmans v Malseed

Details

AGLC: Vloedmans v Malseed [2014] QCATA 174
Case: [2014] QCATA 174
Decision Date: 14 July 2014

CaseChat Overview and Summary

In the case of Vloedmans v Malseed, the appellant, Cara Vloedmans, sought compensation for damages and disturbances caused by the respondent, Michael Malseed, during her tenancy of a residential property. The dispute was heard and determined by the Civil and Administrative Tribunal of New South Wales (NCAT). The appellant argued that she was entitled to compensation for the inconvenience and disruption caused by the respondent's actions, while the respondent did not appear at the hearing. The tribunal ultimately ordered the respondent to pay the appellant 66 weeks’ compensation. However, the appellant sought leave to appeal the decision, arguing that the tribunal's reasons for its decision were not clear and that the claim was not limited by section 419 of the Residential Tenancy Act 2010 (NSW).

The legal issues before the court included whether there were grounds for reopening the proceedings, whether the claim was limited by section 419 of the Act, and whether there was a substantial reduction in amenity for the full period of 66 weeks. The court considered the evidence presented and the arguments of both parties. The court found that the reasons for the tribunal's decision were not clear and that there were grounds for reopening the proceedings. The court also found that the claim was not limited by section 419 of the Act and that there was a substantial reduction in amenity for a portion of the 66 weeks. The court determined that the respondent should be ordered to pay the appellant compensation for a reduced period of time.

In light of the findings, the court granted leave to appeal and allowed the appeal. The decision of the tribunal dated 19 December 2013 was set aside, and the respondent was ordered to pay the appellant $4,484.60 within 28 days of the date of the orders. The court's decision provided clarity on the legal issues and the appropriate compensation for the appellant's claim.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal allowed.

3. The decision of 19 December 2013 is set aside.

4. Cara Vloedmans shall pay Michael Malseed $4,484.60 within 28 days of the date of these orders.

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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