Walker v Balmforth
[2010] QCATA 110
•15 December 2010
| CITATION: | Walker v Balmforth [2010] QCATA 110 | |
| PARTIES: | Danielle Maree Walker (Applicant/Appellant) | |
| v | ||
| Cheryl Kay Balmforth (Respondent) | ||
| APPLICATION NUMBER: | APL217-10 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 15 December 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Application for leave to appeal refused |
| CATCHWORDS : | RESIDENTIAL TENANCIES – COMPENSATION – FINDINGS OF FACT – LEAVE TO APPEAL – where the Tribunal at first instance ordered the respondent pay compensation to the appellant arising from the end of the tenancy – where the appellant alleges that the Tribunal made wrong findings of fact and should have allowed for greater amount of compensation – whether Tribunal made incorrect findings of fact – whether leave should be granted Queensland Civil and Administrative Tribunal Act 2009, s 142(3) Fox v Percy (2003) HCA 22, cited |
APPEARANCES and REPRESENTATION (if any):
The matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Ms Walker was the tenant in a residential property at 5 Reilly Street, Urangan. The property is owned by the respondent, Ms Balmforth. By a general tenancy agreement dated 20 March 2009, Ms Walker agreed to rent the property from Ms Balmforth for a period of 12 months, the starting date of the tenancy being 20 February 2009 and the end date being 20 February 2010.
On 27 November 2009 Ms Balmforth gave Ms Walker a Notice to Remedy Breach[1] and then on 18 January 2010 served Ms Walker with a Notice to Leave[2].
[1]Pursuant to section 325 of the Residential Tenancy and Rooming Accommodation Act (“RTRA”)
[2] Pursuant to section 326 of the RTRA Act.
Ms Walker vacated the premises. On 24 May 2010 Ms Balmforth filed an application in QCAT claiming for arrears of rent, and compensation. The specific claim is for:
Rent arrears from 10 December to 18 February $2,300.00
Water bill excessive water use $ 250.00
Harvey Bay pest control rid of fleas,
cockroaches $ 240.00
Replace oven oven couldn’t be cleaned $ 359.00
Repairs and cleaning stolen curtains, doorhandles $1,611.00
Cost of handyman $1,000.00
Total $6,000.00
Less $ 840.00
Balance $5,160.00
On 20 August 2010 a Magistrate at Hervey Bay, sitting as a QCAT adjudicator, heard the parties, considered the application and made the following order:-
“Respondent pay to the applicant the amount of $3,364.50 compensation, and $90.00 filing fee, which makes a total of $3,454.50”
It is from that decision of the learned Magistrate that Ms Walker seeks leave to appeal. Leave is necessary: Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), s 142(3).
The grounds of appeal set out in the application challenge, quite specifically, the learned Magistrates findings of fact with respect to Ms Walker’s liability for arrears of rent, the cost of repair to the hot water system, the cost of replacing an old oven, and the cost of cleaning. It is further alleged by Ms Walker that she is entitled to a refund of overpaid in the sum of $5040.00.
The grounds do not demonstrate or contend that there was any error of law. It is the duty of this Tribunal when considering whether to grant leave to appeal to determine whether there is an error in the primary decision, rather than to decide where the truth lay as between the competing versions given by the parties.[3]
[3] Fox v Percy (2003) HCA 22 at (32) per Gleeson CJ Gummow and Kirby JJ
The submissions filed by the applicant in support of the application for leave to appeal do no more than take issue with the factual findings of the learned Magistrate and seek to relitigate the matters that were before him. By way of example, Ms Walker lists, in her submission “faults throughout the house” which particularises defects in various rooms and a lack of maintenance. She raises a challenge to the finding as to the amount of rent owed asserting that she paid double the rent due to a mistake on the tenancy agreement. Ms Walker has filed a statutory declaration to support these contentions and also a statutory declaration of Martin Courtney which evidence is sought to corroborate the contention that she was a “tidy tenant throughout the time”. Mr Courtney was living at the house and says it was left in a clean and tidy state to his knowledge. He goes on to contend that the reason Ms Walker left was because Ms Balmforth did not properly maintain the property.
The transcript of the hearing before the learned Magistrate establishes that Ms Walker was given every opportunity to present evidence in support of her contentions, and did so. She produced a statutory declaration by Angela Courtney which again, corroborates her evidence. The learned Magistrate took this into account. It does appear that in the hearing Ms Walker did not raise the issue of the overpayment of rent – in itself, a very surprising thing. In any event, it is plain that she had every opportunity to do so.
[10] The learned Magistrate considered each of Ms Balmforth’s claims and, where evidence was lacking, he made adjustments to the amounts allowed.
[11] The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision? Is there a reasonable prospect that the applicant will obtain substantive relief? Is leave necessary to correct a substantial injustice to the applicant caused by some error? Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?
[12] It is evident that the learned Magistrate gave both parties the opportunity to present their case. No error of law or of fact is demonstrated on the transcript, although the learned Magistrate did exercise his discretion in allowing only parts of the Ms Balmforth’s claim, including for example half the cost of a handyman. There is nothing to suggest that the approach taken by the learned Magistrate was unreasonable, or erroneous, having regard to the evidence put before him.
[13] Ms Walker is now attempting, through the appeal process, to reagitate those matters upon which the learned Magistrate had made a determination, as opposed to identifying any error on his part. The application for leave to appeal must be dismissed.
0