Watson v Massey Real Estate Pty Ltd
[2013] QCATA 98
•25 March 2013
| CITATION: | Watson v Massey Real Estate Pty Ltd [2013] QCATA 98 |
| PARTIES: | Robert Watson (Applicant/Appellant) |
| v | |
| Massey Real Estate Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL288-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 25 March 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for leave to appeal is dismissed. 2. The application for stay of decision dated 20 August 2012 is dismissed. |
| CATCHWORDS: | APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – RETURN OF BOND – where the applicant was a tenant of a property managed by the respondent – where the tenant served a Notice of Intention to Leave upon the respondent – where the applicant did not give the required notice period pursuant to the Residential Tenancies and Rooming Accommodation Act 2008 – where the respondent made a Refund of Rental Bond claim for two weeks rent, a break lease fee and a cleaning fee – where the applicant also made a Refund of Rental Bond claim – where the parties could not agree on who should receive the rental bond – where the Magistrate made an order to pay out a sum of the rental bond to each party – where the applicant appealed that decision – whether leave to appeal should be granted Cachia v Grech [2009] NSWCA 232, cited Glenwood Property Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, cited QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41, cited Queensland Civil and Administrative Tribunal Act 2009, ss 3(b), 20, 28(3), 142(3)(a)(i) |
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 (‘QCAT Act’).
REASONS FOR DECISION
Background
Robert Watson entered into a General Tenancy Agreement for a property in Gladstone, which was managed for the owner by Massey Real Estate Pty Ltd (‘Massey’). The term of the tenancy agreement was for six months: starting on 19 March 2012 and ending on 18 September 2012.
On 18 May 2012, Mr Watson told Massey that he planned to vacate the property on 2 July 2012 and move into the house he intended to purchase.
Between 21 and 28 May 2012, Mr Watson issued a number of Notice to Remedy Breach forms upon Massey. His complaints included:
· failure to repair and reposition a stove hob switch, which he believed was an unlawful electrical installation;
· failure to repair an old and noisy air conditioner that was still in working condition;
· failure to prevent other occupants in the unit complex from using his washing machine;
· failure to take reasonable steps to prevent another occupant in the unit complex from disrupting his quiet enjoyment of the property; and
· failure to ensure the common area of the unit complex was clean by not taking reasonable steps to ensure the other occupants in the unit complex emptied their rubbish bins.
Massey’s representative claims that upon receiving those notices they took reasonable steps to remedy the alleged breaches.[1]
[1]Audio of Proceedings, 17 August 2012, 8:49, 25:32.
On 4 June 2012, Mr Watson issued Massey with a Notice of Intention to Leave for unremedied breach or non-liveability, and vacated the property.
On 6 June 2012, Massey emailed Mr Watson an attached list of cleaning to be completed at the property. The attachment also stated:
I am writing regarding the exit inspection at the above address, please note you are still legally responsible for this property.
As per your tenancy agreement dated 13th March 2012 rent will have to be paid in full till the end of your lease or property is re-rented, you are also required to give us two full weeks notice of vacating, plus a broken let fee of one weeks rent plus G.S.T is required.
Mr Watson replied to Massey’s email on 9 June 2012 commenting:
[Massey] broke the lease agreement. As such the lease agreement between us is dissolved and no longer valid, it is void. Any instructions you care to give me are also no longer valid. I have given you ample warning that you would be breaking the lease if you continued to dishonour your obligations.
The Residential Tenancy Authority (‘RTA’) issued a Notice of Claim, dated 12 June 2012, to Mr Watson stating it had received a Refund of Rental Bond directing $1400, the total bond value, to be paid to Massey. Mr Watson issued a Dispute Resolution Request to the RTA claiming the cause of dispute being: disagreement of bond amount claimed; agreement ended early; breach of agreement; repairs to premises; and, risk of injury or damage. Mr Watson and Massey participated in the dispute resolution process,[2] at which time Massey amended its claim from $1400 to $1289. Details of the amended claim are as follows:
1. Two weeks loss of rent…………………………………………...$750.00
2. Break lease fee…………………………………………………… $385.00
3. Cleaning fee………………………………………………………. $154.00
[2]Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 398(1) (‘RTRA Act’).
The parties could not reach an agreement on how to resolve the bond refund dispute. A Notice of Unresolved Dispute was issued by the RTA on 5 July 2012.
Application for minor civil dispute
On 12 July 2012, Mr Watson began proceedings in the Minor Civil Dispute jurisdiction of the Queensland Civil and Administrative Tribunal (‘the Tribunal’) seeking:
1. Refund of rental bond…………………………………….......... $1400.00
2. Filing fee…………………………………………………………….. $95.00
3. Compensation for time to prepare application………………… $200.00
4. Compensation for loss of amenities…………………….......... $1000.00
On 17 August 2012, the matter was heard by a Magistrate sitting as a Tribunal member. The learned Magistrate found:
[T]he landlord [was] entitled to the claim for loss of rent, break lease fee and probably something towards the cleaning. Likewise… Mr. Watson was entitled to something for loss of amenities.
Therefore, the learned Magistrate ordered that the RTA was to pay out the rental bond as follows:
1.$700 to the tenant
2.$700 to the landlord
Appeal
Mr Watson seeks leave to appeal that decision. Leave is necessary under s 142(3)(a)(i) of the QCAT Act. He also applied to stay the decision pending the outcome of that application.
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?[3] Is there a reasonable prospect that the applicant will obtain substantive relief?[4] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[5] 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?[6]
[3]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]Cachia v Grech [2009] NSWCA 232 at [13].
[5]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[6]Glenwood Property Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 580.
Mr Watson relies on a number of grounds in his appeal application:
1.Material evidence given by the respondent to the court was not disclosed to me prior to the hearing date.
2.The respondent made false and misleading claims on the [Refund for Rental Bond form], then changed the reasons and the amount claimed in court.
3.The respondent imposed unlawful special conditions in the lease agreement.
4.The respondent breached the lease agreement many times prior to me terminating the agreement and vacating the premises.
5.The [Notice of Intention to Leave] states A dispute resolution should have been sort by the respondent before making an unlawful claim on my bond money.
6.[The Notice of Intention to Leave] was for the reason of unliveable conditions, no notice required, stated on form and with attached letter. “In short I refuse to pay for a residence that I cannot live in”
7.[The Magistrate] has the false impression that I am making the claim and Masseys are resisting the claim.
8.[The Magistrate] failed to understand the termination reasons and was biased in his decision.
I have listened to the recording of the proceedings before the learned Magistrate on 17 August 2012. Grounds 2, 3, 4, 5, 6 and 7 of Mr Watson’s application for leave to appeal revisit the same material and arguments put before the learned Magistrate. One clear purpose of a ‘leave’ provision, attached to appeal process, is to preclude attempts to conduct retrials on the merits.[7] No question of general importance arises from these grounds. It follows that it is unnecessary for this Appeals Tribunal to discuss them.
[7] CF QCAT Act s 20 (reviewable decision).
Disclosure
The Tribunal must deal with matters in a way that is accessible, fair, just, economical, informal and quick.[8] This object is achieved, at least in part, by s 28(3) of the QCAT Act, which provides that the Tribunal is not bound by the rules of evidence or any practices of procedures applying to courts of record. I do not consider that the alleged failure of Massey of disclosing ‘material evidence’ to Mr Watson prior to the hearing date a substantial injustice.
[8] QCAT Act s 3(b).
Bias
Mr Watson claims the learned Magistrate was affected by bias in coming to his decision. This ground is disingenuous. I have listened to the recording of the hearing and I can find no evidence of bias. I am not prepared to set aside the learned Magistrate’s decision on this basis.
There are well settled principles for deciding whether leave to appeal should be granted.[9] This is not a case posing a question of general importance which should, in the public interest, be reconsidered on appeal. The learned Magistrate’s findings of fact and law were open to him, as primary decision-maker. It is not nearly enough for a party to express disappointment at the original decision,[10] as is the case, with respect, in this appeal.
[9] See [14] of the reasons for this decision.
[10] Robinson v Corr [2011] QCATA 302 at [7].
Leave to appeal should, then, be refused. In the absence of leave the application for a stay becomes futile and should also be dismissed.
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