WB Property Management v Warmsley
[2010] QCATA 127
•3 February 2010
| CITATION: | WB Property Management v Warmsley [2010] QCATA 127 |
| PARTIES: | WB Property Management (Applicant) |
| v | |
| Mr Ross Fraser Warmsley & Leisel Warmsley (Respondents) |
APPLICATION NUMBER: APL147-10
| MATTER TYPE: | Appeals |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Richard Oliver, Senior Member |
DELIVERED ON: 3 February 2010
DELIVERED AT: Brisbane
ORDERS MADE: 1. Leave to appeal is refused
| CATCHWORDS : | Minor civil dispute – residential tenancy matter; where Tribunal made findings of fact; where no error demonstrated. Queensland Civil and Administrative Tribunal Act 2009 section 142(3) Fox v Percy [2003] HCA 22 at [32] per Gleeson CJ, Gummow and Kirby JJ McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
APPEARANCES and REPRESENTATION:
This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
The Walmsleys were tenants of a property managed by the respondent at 15 Zeus Court, Coomera. After they vacated the property, they sought to recover the sum of $1,700.00 being costs associated with extra electricity used by an air conditioner they allege was defective. The total bond held by the Residential Tenancies Authority was $2,875.00.
To recover the bond and the monies claimed to be owing to them, they commenced a proceeding in the Tribunal, an application for minor civil dispute – residential tenancy matter, on 5 July 2010.
The application came on for hearing before an Adjudicator on 21 July 2010. After hearing the parties, the learned Adjudicator gave reasons and made a decision that the bond money was to be distributed between the applicants and the landlord as follows: $917.50 to the landlord and $1,957.50 to the Warmsley’s.
Subsequent to making that order, the applicant filed an application for leave to appeal or appeal in the Tribunal on 26 July 2010. The grounds as set out in the application for leave to appeal are:-
“We believe the tenants should be responsible for work that they had authorised to be completed as well as the water consumption and outstanding rent.”
In effect, what those grounds of appeal are asking the Appeal Tribunal to do, is to reconsider all of the evidence put before the learned Adjudicator and make another decision. That is not the function of the Appeal Tribunal. My sole duty is to determine whether there is an error in the primary decision. It is not my task to decide where the truth lay as between the competing versions given by the parties.[1]
[1] Fox v Percy [2003] HCA 22 at [32] per Gleeson CJ, Gummow and Kirby JJ.
No written submissions have been filed in support of the application for leave to appeal. Instead, what has been filed is an entry condition report, invoices in support of cleaning, the tenant’s ledger, an invoice for audit consumption and an invoice from S & B Property Maintenance. These are all documents in support of the applicant’s claim that was made during the hearing of the residential tenancy dispute.
A perusal of the transcript indicates that all issues now raised by the filing of the documents in the appeal proceeding, were canvassed during the initial hearing by both a representative for the applicant, and Mr Warmsley who gave his evidence by telephone. Ms Buchanan, who appeared for WB Properties sought the cost to replace the carpets, excess water charges, cost for repairs to damage, allegedly caused by the Warmsley’s as well as contending that the Warmsley’s were not entitled to a full rebate on the electricity charges because of the defective air conditioning system.
The learned Adjudicator took all those matters into account when he made his decision. He allowed part of the claim made by WB Properties which included $165.00 for carpet cleaning, and other claims the total of which came to $1,417.50. From that, he deducted $500 he allowed to the Warmsley’s because of increased electricity charges due to the faulty air conditioner. He then made an order that the monies held by the Residential Tenancy Authority be distributed so that the landlord received $917.50 and the tenants received $1,957.50.
It is not the function of the Appeal Tribunal to re agitate all of the evidence that was put before the learned Adjudicator upon which a decision was made. Before this matter can proceed further, the applicant must obtain leave from the Tribunal[2].
[2] QCAT Act section 142(3).
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 (supra).
[6] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
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?
The applicant fails to meet any of the criteria referred to above. Further no error on the part of the learned Adjudicator has been demonstrated nor is one apparent. Therefore, leave to appeal must be refused.
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