Webster v Smith
[2012] QCATA 163
•27 August 2012
| CITATION: | Webster v Smith [2012] QCATA 163 |
| PARTIES: | Suzanne Webster (Applicant/appellant) |
| v | |
| Ann-Maree Smith (Respondent) |
| APPLICATION NUMBER: | APL454-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 27 August 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Application for leave to appeal refused. |
| CATCHWORDS: | RESIDENTIAL TENANCIES – whether conduct of hearing was unfair – whether Magistrate was biased – where premises not an approved dwelling – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act2009, ss 28(3)(b), 95(4)(b) Residential Tenancies and Rooming Accommodation Act 2008, ss 9(2), 291(3) Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Ms Smith owns a rural property in the Sunshine Coast hinterland. She rented a part of that property to Ms Webster under a residential tenancy agreement. During the course of the tenancy, Ms Webster complained about the gas connection and Ms Smith complained about Ms Webster’s lack of attention to the maintenance of the grounds.
The tenancy was terminated and Ms Webster filed a claim for compensation that was equivalent to the amount of the bond. A Magistrate, sitting as a member of the Tribunal, ordered that the bond be paid to Ms Smith for arrears of rent, cleaning and gardening costs.
Ms Webster wants to appeal that decision. She was not happy with the way the learned Magistrate conducted the hearing. She says that she was treated rudely and condescendingly, and was disempowered because her rights were not taken into account and her evidence was not properly examined. Ms Webster complains that the Magistrate did not require the parties to give evidence under oath. Ms Webster says that, as a result of these errors, the Magistrate’s decision was made on biased and unjust grounds.
Ms Webster also has complaints about the Magistrate’s findings of fact. She says that the Magistrate was in error in finding that the outstanding rent was $960, that electricity was properly payable, and that the bond clean and gardening costs were necessary.
Ms Webster has also raised some other issues. She says that the termination of the tenancy was retaliatory. She says that Ms Smith should compensate her for failing to rectify a faulty gas connect and failing to ensure that the gas connection was certified. Ms Webster says that the cleaning invoice was rendered by Ms Smith under a registered business name so it is not, in fact, a proper third party invoice. Finally, Ms Webster says that the dwelling was not, in fact, an approved residential dwelling so Ms Smith was not entitled to rent it out as a dwelling and, therefore, Ms Smith should refund all of the rent paid by Ms Webster.
Because this is an appeal from a decision of the Tribunal in its minor civil dispute jurisdiction, leave to appeal is necessary. 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 a reasonable prospect that 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 conduct of the proceedings
I have listened to an audio of the hearing before the learned Magistrate.
Ms Webster’s assertion that Ms Smith was not sworn is misconceived. Ms Webster arrived at the hearing late. The audio shows, at the commencement of the hearing, that Ms Smith had already been sworn. That is why, when Ms Webster was present, the learned Magistrate asked the hearing support officer to administer the oath to Ms Webster, Mr MacDonald and Ms Smith. There is no substance in this ground of appeal.
Similarly, I can find no substance to Ms Webster’s allegation that the learned Magistrate was either rude, or condescending. The Magistrate exhibits a cool and detached manner in dealing with the parties, but she is not rude. She did ask Ms Webster to explain the basis for her claim and the relevance of documents that she submitted to the tribunal, but I did not detect any hint of condescension in her tone.
The learned Magistrate did ask Ms Webster not to interrupt Ms Smith when that party was speaking.[1] The request was entirely appropriate, as Ms Smith had not interrupted Ms Webster when she was addressing the Tribunal.
[1] Transcript, at approximately 31:00 minutes.
I do not agree that Ms Webster was disempowered in the presentation of her case. Rather, the audio demonstrates that Ms Webster was able to articulate her case and that she was given every opportunity to present documents and submissions to the Tribunal. If Ms Webster did feel pressure at the hearing, it was not generated by anything the learned Magistrate said, or did.
Bias is a very serious allegation. The test is[2]:
… if a fair-minded lay bystander might reasonably apprehend that the decision-maker might not bring an impartial mind to the determination of the issues that he or she must decide.
[2] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
There is nothing in the audio that supports a finding that the learned Magistrate was biased.
The findings of fact
Ms Webster says that the Magistrate erred in finding that the outstanding rent was $960 because the proper amount owing was $822.85.
Ms Webster says that the Magistrate did not look at the bank statements filed in the proceedings. Ms Webster did not refer the learned Magistrate to the bank statements during the hearing, except to say that they were proof that rent was paid[3]. That fact is not in dispute. The bank statements do not otherwise assist Ms Webster in her claim.
[3] Transcript, at approximately 18:45 minutes.
Ms Smith told the tribunal that Ms Webster owed three weeks rent, and that the weekly rent was $320[4].
[4] Transcript, at approximately 34:45 minutes.
It is common ground that Ms Webster paid the rent up to 22 May 2011. It is also common ground that Ms Webster left the property on 8 June 2011 but Ms Webster has conceded that she posted the keys back to Ms Smith on 9 June 2011[5]. That day was a Thursday. Three weeks from 22 May 2011 was 12 June 2011. It is unlikely that Ms Smith received the keys before Sunday, 12 June 2011. The learned Magistrate was entitled to find that the rent was due for a full three week period.
[5] Submissions, paragraph 1(f).
Ms Webster disputes the learned Magistrate’s finding that she owed Ms Smith $406.50 for electricity. Ms Webster’s submissions in the appeal are no different from her submissions before the learned Magistrate. Ms Webster disputes the rate per kilowatt charged because she is paying a lower rate in her current accommodation.
Ms Webster said at the hearing that she had asked Ms Smith for confirmation of the rates but none was supplied[6]. Ms Smith pointed out[7] that: the tenancy agreement specifically stated that electricity would be charged per kilowatt; that there was no separate bill for the premises but there was a separate meter; that she took readings of the meter and charged Ms Webster at the rate that the supplier charged. The tenancy agreement, in Item 14, does state that electricity was to be paid “Per kW to Lessor”. If Ms Webster had been in any doubt about what that meant, she should have raised it earlier.
[6] Transcript, at approximately 20:34 minutes.
[7] Transcript, at approximately 37:11 minutes.
Ms Webster did not provide any evidence that the charges incurred by Ms Smith were different from the charges billed to Ms Webster. It is not enough for Ms Webster to simply say that she is now paying a lower rate. There are many reasons why this might be so and it is up to Ms Webster to show that she should be entitled to pay electricity charges at a lower rate. The learned Magistrate was not convinced by Ms Webster’s argument at the hearing and there is nothing in the application for leave to appeal which persuades me that I should take a different view.
Ms Webster disputes the house cleaning fees on the basis that the house was left in the same condition as when she entered into the agreement. There are two entry condition reports on the file which has been signed by both parties. One report has “please see attachment” written across the tenant’s side of the document. The attachments have not been signed. The other report has handwritten comments on the document itself and has been signed by both parties. The “attachments” to the entry condition report mirror the issues set out in the exit condition report.
Ms Smith told the Magistrate that Ms Webster kept five dogs on the property rather than the three that were allowed under the tenancy agreement[8]. Ms Webster did not dispute that fact. Ms Smith also told the Tribunal that there “were faeces all over the place”. Again, Ms Webster did not deny that fact. It is implicit, in the learned Magistrate’s finding that the cleaning was a valid claim, that she preferred Ms Smith’s evidence to that of Ms Webster. That finding was reasonably open to her, and involves no apparent error.
[8] Transcript, at approximately 40:00 minutes; Item 17.2 of the tenancy agreement.
Ms Webster says she should not have to pay any gardening costs. She says that the gardens were in the same condition when she left as they were at the start of the tenancy. She also says that there was a dispute about the extent of her obligations under the tenancy agreement and the area to which the obligation applied.
Ms Smith acknowledged that the gardens required work when Ms Webster moved in because Ms Webster wanted to move in at short notice. She says she attended to the gardens “as soon as she could” given her work commitments[9].
[9] Transcript, at approximately 31:00 minutes.
As the learned Magistrate observed[10], the tenancy agreement does record that it is the tenant’s obligation to keep the house and surrounds clean and tidy. Ms Smith gave evidence that the area to be maintained was defined by a fence[11]. Again, it is implicit in the learned Magistrate’s finding (that the gardening costs were a valid claim) that she preferred Ms Smith over Ms Webster and I can find no reason to come to a contrary conclusion.
[10] Transcript, at approximately 25:30 minutes.
[11] Transcript, at approximately 27:40 minutes.
Retaliatory action
Section 291(3) of the Residential Tenancies and Rooming Accommodation Act 2008 provides that a lessor cannot give a notice to leave without ground if the giving of the notice constitutes taking retaliatory action against a tenant. The notice to leave in this case was not a notice without ground. Therefore, the retaliatory provisions of the RTRA Act do not apply. If Ms Webster was of the view that the notice to leave was given improperly, she should have applied to set it aside.
In any event, the issue of retaliatory action was raised before the learned Magistrate[12]. Apparently, she was not persuaded by the argument and I can find no reason to come to a contrary view.
[12] Transcript, at approximately 42:30 minutes.
The cleaning invoice
Ms Webster knew at the hearing that the ABN on the electricity invoice was the same ABN as on the cleaning invoice[13]. She questioned the legitimacy of the invoice but took the issue no further. She cannot now, having made further inquiries, claim that the learned Magistrate was in error.
[13] Transcript, at approximately 43:50 minutes.
The shed was not an approved dwelling
Ms Webster did raise this issue at the hearing[14]. The learned Magistrate asked what flowed from the fact that the dwelling was not an approved dwelling. There was no satisfactory response.
[14] Transcript, at approximately 28:50 minutes.
The RTRA Act applies to many dwellings that would not be “approved” in a town planning sense[15] and the definition of premises is drawn deliberately wide. In my view, it would be wrong to interpret the Act as not applying to a dwelling if it is not an approved dwelling. That interpretation would deprive many disadvantaged people of rights under the Act and could lead to mischief from unscrupulous lessors.
[15] See s 9(2).
If a tenant acquires rights under the RTRA Act, there should be corresponding obligations. Ms Webster did live in the premises. She acquired a benefit. She should not acquire that benefit without also incurring the obligation to pay rent.
Conclusion
For the reasons set out above, there is no question of general importance which should be determined by the QCAT Appeal Tribunal; there is no reasonably arguable case that the learned Magistrate was in error; there is no reasonable prospect of substantive relief on appeal; and there is no evidence that a substantial injustice will result if leave is not granted.
Leave to appeal must, therefore, be refused.
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