Waters v Blenheim Cav Pty Ltd t/as Modena on Chevron
[2014] QCATA 107
•5 May 2014
| CITATION: | Waters v Blenheim Cav Pty Ltd t/as Modena on Chevron [2014] QCATA 107 |
| PARTIES: | Glenn Waters (Applicant/Appellant) |
| v | |
| Blenheim Cav Pty Ltd t/as Modena on Chevron (Respondent) |
| APPLICATION NUMBER: | APL009 -14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 5 May 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application to strike out the application for leave to appeal is dismissed. 2. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – RESIDENTIAL TENANCIES – where co-tenants – where lessor claimed against one tenant only – whether lessor mitigated its loss - whether grounds for leave to appeal Pickering v McArthur [2005] QCA 294 Douglas v Warragrove Pty Ltd t/as Combined Property Rent [2010] QCATA 315 (distinguished) |
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
Mr Waters signed a tenancy agreement for an apartment in Modena on Chevron on 19 April 2013. On 21 April 2013, Ms McKenzie was added as a tenant. In late May 2013, Mr Waters advised that he was going to break lease. He did break lease. When Blenheim Cav Pty Ltd t/as Modena on Chevron re-rented the apartment, it filed a claim for compensation. An Adjudicator ordered that Mr Waters pay Blenheim $3,669.32.
Mr Waters wants to appeal that decision. He says that Ms McKenzie should have been a party to the application. He says that Blenheim did not take all reasonable steps to mitigate its loss. He says Blenheim did not mitigate its costs in the claim for linen handling. He also wants an order that he be reimbursed for items not proven to be clean when he entered the tenancy.
Blenheim submits that the appeals tribunal should strike out Mr Waters’ application for leave to appeal because of non-compliance with the tribunal orders. It says that Mr Waters did not serve the application for leave to appeal within the time frames contemplated by the appeal tribunal directions dated 15 January 2014.
By the directions dated 15 January 2014, Mr Waters had to file and serve an application for extension of time by 24 January 2014. Paragraph 4 of those directions stated that, if Mr Waters did not comply with the directions, his application would be dismissed.
Mr Waters did not comply with the directions. Instead, he sent an email to the tribunal on 29 January 2014 explaining that his application for leave to appeal was within time, because he did not receive the reasons for decision until 18 December 2013.
The tribunal can excuse non-compliance with procedural requirements[1]. Even though there was a guillotine order, for the reasons that follow, I am satisfied that Blenheim was not prejudiced Mr Waters’ delay of four days in explaining why he did not file the application for leave to appeal until January 2014. The application to strike out the application for leave to appeal is dismissed.
[1]QCAT Act s 61(1)(c).
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as His Honour then was) in Pickering v McArthur[2]:
There are numerous authorities, in varying language but with unvarying emphasis, that 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][2005] QCA 294 at [3].
Mr Waters sent an email to Blenheim and the tribunal on 9 September 2013 pointing out that Ms McKenzie was a co-tenant. He did not, as he was entitled, apply to join Ms McKenzie as a party to the dispute. Clause 3 of the tenancy agreement states that each tenant must perform the tenant’s obligations. It is not the case that, if there is damage or unpaid rent, the lessor must claim half the cost from Mr Waters and half from Ms McKenzie. The lessor is entitled to claim all of the costs from one tenant. That is what Blenheim did and the learned Adjudicator did not err in proceeding with the case as presented to him.
Mr Waters says that Blenheim did not take reasonable steps to re-let the property because it knew that rental conditions were tight; it knew that the apartment had been untenanted for 45 days before Mr Waters signed the tenancy agreement; and it knew that this apartment was one of five vacant tenancies in the complex. Mr Waters has referred me to Douglas v Warragrove Pty Ltd t/as Combined Property Rent[3] in support of his contention that Blenheim did not mitigate its loss.
[3][2010] QCATA 315.
The learned Adjudicator found that Blenheim did take reasonable steps. It put a notice up in the complex ‘almost immediately’[4]. It advertised the apartment on the internet. The learned Adjudicator heard that Mr Waters did not allow prospective tenants to view the apartment between 29 May and 11 June[5]. He heard that the holiday market was soft in June so this was affecting the permanent rental market rates[6]. He heard that the holiday market effect disappears after July[7] and that Blenheim secured a tenant within two weeks of dropping the rental by $20 per week.
[4]Transcript page 1-20, lines 8-9.
[5]Transcript page 1-5, lines 7-21.
[6]Transcript page 1-6, lines 6-9, 38-43.
[7]Transcript page 1-6, lines 45-47.
Each decision turns on its facts. In Warragrove the tenant gave 10 weeks’ notice. The agent did little to re-let until the end of the notice period. It is not the same situation as presented to the learned Adjudicator here. The evidence can support the learned Adjudicator’s finding that Blenheim did take steps to mitigate its loss and I can find no compelling reason to come to a different view.
Blenheim claimed $180 for linen and laundry, being three hours and $60 per hour. The learned Adjudicator found that claim was excessive and reduced it to $99. Mr Waters questions whether the cleaning of all bedroom items was justified after only five weeks occupation. He now says that not all the bedroom items were cleaned before he entered the tenancy but the evidence he relies on was not before the learned Adjudicator. Even if I accepted that evidence, the best case for Mr Waters is that Blenheim could sustain its claim for $180, based upon Ashmore Commercial Laundry’s tax invoice plus labour to make the beds. There is no evidence to support a finding that the learned Adjudicator erred in allowing a claim for $99.
There is no reasonably arguable case that the learned Adjudicator was in error. Leave to appeal should be refused.
0