Wilkes v Andrew

[2012] QCATA 173

CITATION: Wilkes v Andrew and Anor [2012] QCATA 173

PARTIES:	Edward Michael Wilkes (Appellant)
v
Alan James Andrew Joyce Edna Southcott (Respondents)

APPLICATION NUMBER: APL455-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Dr J R Forbes, Member

DELIVERED ON: 12 September 2012

DELIVERED AT: Brisbane

ORDERS MADE: 1. Leave to appeal refused.

APPEAL – LEAVE TO APPEAL – RESIDENTIAL TENANCY – where respondents were tenants in property owned by the applicant – where tenants sought early termination of the lease – where tenants had made improvements to the property – where the tenants sought recompense for these improvements – where Tribunal awarded tenants a quantum meruit claim – where primary decision limited to issues properly raised – whether leave to appeal should be granted

Queensland Civil and Administrative Tribunal Act 2009, ss 3, 20, 32, 142(3)
Residential Tenancies Act 1994, s 118
Residential Tenancies and Rooming Accommodation Act 2008, s 208(2)

ABB Power Generation Ltd v Chapple [2001] WASCA 158
Drew v Bundaberg Regional Council [2011] QCA 359
Fox v Percy (2003) 214 CLR 118
Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611
Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
Robinson v Corr [2011] QCATA 302

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

1. On 23 April 2010 the Respondents, Andrew and Southcott (“the Tenants”) and two others, leased a 10-acre residential property at Forest Hill, near Gatton, from the Appellant, Edward Michael Wilkes (“the Landlord”).

2. The term of the lease was 5 years, with an option to renew for a similar period.  But it ended prematurely in December 2011, after a “poisonous relationship”[1] developed between the parties.  However, during their twenty months’ occupation of the property, the Tenants expended substantial amounts of money on it, in the belief that they would be there for a much longer period of time.

   [1]        Adjudicator LeMass, transcript, page 6.

3. When their stay abruptly ended, the Tenants took the view that they were entitled to some recompense for the improvements they would no longer enjoy.  The Landlord did not agree.

4. So on 4 October 2011 the Tenants filed a quantum meruit claim in this Tribunal for an amount of $4,584.20. While the present claim appears to have been dealt with according to common law, it may be noted, incidentally, that the principle is recognised in s 208(2) of the Residential Tenancies and Rooming Accommodation Act 2008, as it was in the former Residential Tenancies Act 1994.[2]A quantum meruit claim or a claim for unjust enrichment seeks a reasonable sum, in the absence of an effective contract, for benefits obtained by a defendant at the expense of the claimant.[3]  The doctrine is authoritatively reinforced by the High Court in Pavey & Matthews Pty Ltd v Paul[4], and summarised by Murray J (with whom Templeman J and Einfeld JA agreed) in ABB Power Generation Ltd v Chapple[5], as follows:

   [T]he basic concept provides a capacity for the law, by drawing on principles of common law and equity, to provide compensation to a plaintiff in a case where, at the plaintiff’s expense ... the defendant has been provided with, and has accepted, a benefit ... which, in the circumstances of the case, it would be unjust to permit the defendant to receive without making reasonable compensation ... where the plaintiff can be seen to be more than a mere volunteer.

   [2]        Residential Tenancies Act 1994, s 118.

   [3]        Lindgren et al, Contract Law in Australia (1986) at 2312.

   [4] (1987) 162 CLR 221.

   [5] [2001] WASCA 412 at [18].

5. The Landlord responded with a counterclaim for termination of the tenancy.  That document contains no specific response to the Tenants’ allegations, although Part E2 of it refers to “dam enlargement”, “outstanding water”, “round yard destroyed” and “failure to remedy breaches’, without particulars or any indicated of the orders sought or damages claimed.  In Part E3 (reason for seeking orders) the Landlord reiterates some of those complaints and adds others, such as “tenant Southcott is particularly hostile” and “no communication can be carried on”.  Once again, there is a dearth of particulars, and no specific orders are sought.  In short, the only issue raised by the Landlord’s counterclaim concerns termination, which was duly granted.

6. Claim and Counterclaim were decided on 16 November 2011.  The second-named Applicant, Joyce Edna Southcott, represented the Tenants, and the Landlord Wilkes appeared in person. Ms Lewis, described as tenant advocate, was also granted audience, presumably as amicus curiae.

7. Following evidence and argument by the parties, the Adjudicator, Mr LeMass, awarded the Tenants $2,670, and granted the Landlord a termination order.

8. The Landlord now seeks (i) leave to appeal; and, (ii) an order dismissing the Tenants’ claims.

9. The Tenants documented their case with invoices, bank records, and correspondence from the Landlord.  The Landlord, declaring that he had “shredded up the paper work they’re talking about”[6], relied, for the most part, on broad and sometimes bellicose assertions, with minimal documentary support.  Besides, many of the Landlord’s assertions were irrelevant, for reasons set out in [16] and [17], below.

   [6]        Transcript, page 24.

10. The learned Adjudicator disallowed several of the Tenants’ heads of claim, which need not now be considered.  He also reduced several of the claims that were allowed.  But on the basis of “substantial benefit to [the Landlord] and/or that he agreed for the works to be done”[7] the Adjudicator awarded the Tenants $2,760 made up as follows:

    a)    De-silting of dam: $1,000; [$2,498 claimed]

    b)    Repairs to dam pump: $230; [$230 claimed]

    c)    Fencing: $420; [$839 claimed]

    d)    Rent overpaid: $1,020. [one half of amount claimed]

    [7]Transcript, page 34.  See also Transcript page 32: “[Y]ou have been benefited by the monies that have been spent by people on your property and your property has been improved to an extent”.

11. The allowance for overpaid rent is explained as follows.  It was a special, albeit vaguely worded condition of the lease that: “The outside shed will be modified to be effectively made into a useable condition by the first [rent] review date under this agreement[8] or as agreed.”  It is common ground that the shed, when renovated, was to provide accommodation for the parents of Alan James Andrew, and the Adjudicator accepted that, at all material times the rent paid by the Tenants ($390 per week) included a component for occupation of the (yet to be renovated) shed.

    [8]        Six months after the commencement of the tenancy: special condition No 1.

12. The agreed renovations were never completed, but the rent was not reduced.  The Landlord attributed non-renovation solely to hostilities between the Tenants and the Landlord’s tradesmen, but that explanation was rejected by the Adjudicator, with the observation that the Landlord “still has the funds that he would have otherwise spent, so to that extent he has been benefited”.[9]  According to the Tenants, an amount of $40 per week was attributable to the uninhabitable shed, but the Adjudicator decided that half that amount was appropriate.

    [9]        Transcript, pages 28, 33.

The Landlord’s Submissions on Appeal

1. In his application for leave to appeal the Landlord alleges bias, asserting that “at the outset of [the] hearing [the] adjudicator stated that he intended to find against me”.  Perusal of the transcript shows that this allegation is baseless, and indeed scandalous.  It was not until page 28 in a transcript of just 36 pages that the Adjudicator foreshadowed a finding that the Landlord had been “benefited” by monies spent by the Tenants on his property.  A little later the Adjudicator expressed mild and understandable exasperation with the intransigent Landlord’s refusal to make “one attempt at being even remotely reasonable with consideration of these claims”.[10]

   [10]        Transcript, page 32.

2. Also baseless is the submission[11] that the Tribunal should not have found the Landlord guilty of “harassment abuse and threats”.  The Adjudicator made no such finding or comment.  It is noticeable, however, that the Landlord accused Ms Southcott of using unrepeatable “choice words”, and of directing nasty abuse at a workman sent to renovate the shed.[12]

   [11]        In the Landlord’s document dated 31 January 2011.

   [12]        Transcript, page 35.

3. In the application for leave to appeal, the Landlord complains that he had no access to material filed by the Tenants on 3 or 5 November 2011, ten to fourteen days before the hearing.  However, the transcript does not record the slightest complaint in that regard.  Had any such complaint been made, and been well founded, the Adjudicator would doubtless have acted promptly to remedy the situation.

4. The rest of the Landlord’s submissions[13] amount to a litany of allegations about damage to the property by the Tenants.  Those allegations were as irrelevant to the primary hearing as they are to this appeal, for the simple reason that they do not relate to any coherent, specific claim for relief.  As stated above,[14] the only issue that can be distilled from the counterclaim is whether a termination order should be made.

   [13]        In application for leave and documents dated 3 and 31 January 2011 respectively.

   [14]        See [5] of this decision.

5. It follows that there was no issue as to damage caused by the Tenants, or quantum of compensation payable by them, before the Adjudicator.  As matter of law, the Adjudicator could deal only with the issues properly before him, namely, the Tenants’ quantum meruit claims, and the Landlord’s application for termination.  As I understand it, that is the point the Adjudicator was making when he said: “[M]y order is in full and final satisfaction of every bit of paper I have here in front of me.”[15]  Referring, no doubt, to issues that the Landlord might properly have raised, but did not, the learned gentleman prefaced that statement with the remark: “Mr Wilkes, you have all sorts of rights ... you can go and see a solicitor about [them]”.  The Tribunal cannot decide matters that have not been clearly and properly raised at first instance; still less can it do that on an application for leave to appeal.

   [15]        Transcript, page 36.

6. In the circumstances it is unnecessary to discuss the Tenant’s submissions in detail.  Understandably, but unhelpfully, they are largely preoccupied with the non-issues canvassed by the Landlord.  They conclude with an impertinent recommendation that “this [appeal] be thrown in the rubbish bin where it belongs”.[16]  It was indeed a poisonous relationship.[17]

   [16]        Southcott’s submission 11 January 2012 page 6.

   [17]        Adjudicator at Transcript, page 6.

Consideration

1. In a case of this kind there is no appeal as of right.[18] It is a prime object of the QCAT Act to resolve disputes, particularly minor ones, quickly and economically.[19]  Subject to justice and reason, finality of the primary decision is consonant with those aims.  There are well settled principles for deciding whether leave to appeal should be granted.  It is not nearly enough for a party to express disappointment at the original decision, or a feeling that justice has not been done.[20]  It must be shown that the decision in question is affected, arguably at least, by an appellable error, resulting in a substantial injustice to the intending appellant.[21]  It is not such an error to prefer one version of the facts to another, or to attribute more weight to the evidence of witness “A” than to the testimony of witness “B”.  Findings of fact will not usually be disturbed on appeal if the findings of fact by the original decision maker have rational, albeit debateable support in the evidence.[22]  Where reasonable minds may differ, a decision cannot properly be called erroneous, simply because one conclusion has been preferred to another possible view.[23]  One clear purpose of a “leave” proviso is to preclude attempts to conduct retrials on the merits.[24]

   [18]        Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(i).

   [19]        Queensland Civil and Administrative Tribunal Act 2009, s 3(b).

   [20]        Robinson v Corr [2011] QCATA 302 at [7].

   [21]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; Drew v. Bundaberg Regional Council [2011] QCA 359 at [19].

   [22]        Fox v Percy (2003) 214 CLR 118 at 125-126.

   [23]Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611 at [131].

   [24]        Contrast Queensland Civil and Administrative Tribunal Act 2009 s 20 (review

   jurisdiction).

2. None of these preconditions for leave is satisfied in this case.  The Landlord’s application for leave does not point to any appellable error of fact or law in the primary decision.  With respect to the learned Adjudicator, he successfully located the essential issues in a miasma of irrelevancies and incidental grievances, and arrived at a result that is, on the admissible evidence, a moderate and reasonable adjudication between the hostile encampments.

3. There is no legitimate basis for granting leave to appeal.

ORDER

1. Leave to appeal is refused.