Williams v Norfolk Realty Pty Ltd
[2014] QCATA 248
•26 August 2014
| CITATION: | Williams & anor v Norfolk Realty Pty Ltd & anor [2014] QCATA 248 |
| PARTIES: | Steve Williams Candis Jones (Applicants/Appellants) |
| V | |
| Norfolk Realty Pty Ltd Natasha Thorndyke (Respondents) |
| APPLICATION NUMBER: | APL262 -14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 26 August 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – whether broken ensuite toilet justifies emergency repair - whether grounds for leave to appeal Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 214(b) Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 |
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 Williams and Ms Jones rented Ms Thorndyke’s property through Norfolk Realty Pty Ltd. It was never a happy relationship. The parties had already been before the tribunal in October 2013 and April 2014. On 14 May 2014, they were before the tribunal again. Mr Williams and Ms Jones wanted $4,808.40 compensation for failure and refusal to conduct repairs, failure to conduct repairs within a reasonable timeframe, refusal to maintain the property in a safe condition and compensation for harassment. The tribunal dismissed their claim.
Mr Williams and Ms Jones want to appeal that decision. They say the learned Adjudicator was not impartial. They say he showed favouritism towards Norfolk and Ms Thorndyke. They say the learned Adjudicator dismissed their evidence without allowing any clarification. They say the learned Adjudicator allowed the other side to shout over the top of them. They say the learned Adjudicator told them to shut up on numerous occasions or he would dismiss their case. They say the learned Adjudicator referred to the wrong section of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (“RTRA Act”) in his decision.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] 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]
[1]QCAT Act s 142(3)(a)(i).
[2]Pickering v McArthur [2005] QCA 294 at [3].
Bias is a very serious allegation. The test for establishing bias is an objective one[3]:
… 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.
[3] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
Mr Williams and Ms Jones have not given me any details of their claim for bias. Therefore, I assume that they rely on their other submissions in the application for leave to appeal as evidence of the learned Adjudicator’s bias. It is appropriate to deal with those submissions first.
Mr Williams and Ms Jones provided the learned Adjudicator with invoices for pool costs[4]. The learned Adjudicator then asked Mr Williams and Ms Jones how they calculated the rest of their claim for compensation[5]. Mr Williams told the learned Adjudicator he based his claim on the order made in October 2013. The learned Adjudicator discussed that calculation with Mr Williams and then asked if there was anything else Mr Williams wanted to tell him[6]. The reply was ‘No, we – we just had a lot of problems.’ followed by a general discussion about their experience in the tenancy.
[4]Transcript page 1-4, lines 4 – 5.
[5]Transcript page 1-4, lines 9 – 10.
[6]Transcript page 1-5, lines 19 – 20.
The learned Adjudicator took evidence from Norfolk and then allowed Mr Williams and Ms Jones a right of reply[7]. He stopped Mr Williams when he perceived that Mr Williams was simply repeating evidence he presented at earlier hearings[8]. There is no basis to suggest theta the learned Adjudicator dismissed Mr Williams and Ms Jones’ evidence without allowing them to clarify it.
[7]Transcript page 1-28, lines 29 – 33.
[8]Transcript page 1-33, lines 9 – 10.
The transcript does show that Ms Corey-Jones, from Norfolk, and Ms Thorndyke, interrupted Mr Williams’ evidence in reply. The learned Adjudicator reprimanded Ms Thorndyke a few times[9]. It would have been better if Ms Thorndyke and Ms Corey-Jones had respected Mr Williams' right to speak uninterrupted. It would have been better if the learned Adjudicator had enforced that right more vigorously. However, I do not consider that Mr Williams and Ms Jones were denied a proper opportunity to put their case.
[9]Transcript page 1-29, lines 33 – 34; page 1-31, lines 5 – 6 and line 20.
Mr Williams interrupted Ms Corey-Jones twice when she was giving evidence[10]. When he interrupted a third time, the learned Adjudicator said[11]:
I’m – I won’t be talking to you again, do you understand that? If you interrupt, I – we’ve been through this before and I notice from the previous transcript, you interrupted again. You know the procedure. You’re not to interrupt. I’m hearing their case. Do you understand?
[10]Transcript page 1-15, lines13 – 18; page 1-16, lines 6 – 8.
[11]Transcript page 1-17, lines 20 – 23.
Contrary to Mr Williams and Ms Jones’ submissions, the learned Adjudicator did not tell them to shut up and he did not tell them he would dismiss their case if they did not. The learned Adjudicator’s warning obviously had the desired result. Mr Williams did not interrupt again.
The learned Adjudicator told the parties he heard one of the earlier cases[12] and no one asked him to excuse himself from the hearing. Presumably, because Mr Williams and Ms Jones were successful in the earlier case, they thought having the same Adjudicator would have been to their advantage. They cannot now claim bias simply because they are unhappy with the decision. I can find no objective basis for a finding that the learned Adjudicator was biased against Mr Williams and Ms Jones.
[12]Transcript page 1-14, lines 23 – 27.
The primary reason for the learned Adjudicator’s decision was that he perceived Mr Williams and Ms Jones were making multiple claims for the same events. Mr Williams and Ms Jones say the learned Adjudicator was in error in that finding. The application heard in October 2013 was for compensation and rent reduction for a poorly maintained tenancy.
The application heard in April 2014 was for compensation for forced relocation due to the agent’s misrepresentation and compensation for harassment. In support of that application, Mr Williams and Ms Jones filed copies of notices to remedy breach that they both sent and received.
The application before the learned Adjudicator was, as I have noted, for failure to conduct repairs, the refusal to maintain the property in a safe condition and compensation for harassment.
The learned Adjudicator did err in applying the six-month time limit in s 419 of the RTRA Act to refuse these claims. “Making an application” includes making a dispute resolution request[13]. Mr Williams and Ms Jones issued notices to remedy breach and then dispute resolution requests within that six-month time period. Their claims, therefore, were within time.
[13]RTRA Act s 416(2).
The learned Adjudicator was required to look at each notice to remedy breach to see if it was a duplicate of an earlier claim. He did not do that so the exercise falls to me.
The notice issued 12 January 2014, to fix a shower screen door handle, was valid and had not been the subject of a previous claim. However, given the small inconvenience this presented, and that Mr Williams and Ms Jones vacated the tenancy just over a week later, I can find no reason to depart from the learned Adjudicator’s refusal to give compensation.
The notice issued on 28 December 2013 related to a broken ensuite toilet. Mr Williams and Ms Jones referred to this as an emergency repair. The notice stated that, if the toilet was not fixed within 24 hours, Mr Williams and Ms Jones would have the repair completed and charged to the lessor.
I am not persuaded that the lack of an ensuite toilet justified an emergency repair. Section 214(b) of the RTRA Act refers to a blocked or broken lavatory system. There was another working toilet in the tenancy[14]. The toilet was fixed within a couple of days over the Christmas holiday break[15]. For different reasons, I agree with the learned Adjudicator that Mr Williams and Ms Jones were not entitled to compensation from the notice issued 28 December 2013.
[14]Transcript page 1-19, lines 24 – 25.
[15]Transcript page 1-19, lines 19 – 20.
The notice issued on 19 December 2013 related to a failure to provide an entry notice. That is a matter that comes under the heading of “harassment”. The tribunal dealt with that in its April hearing. Mr Williams and Ms Jones are not entitled to compensation.
Notices issued on 9 September 2013 and Wednesday 18 December 2013 related to the service of the pool and the refusal to fix the pool pump. The second notice required the breach be remedied by 25 December 2013. That was unlikely to happen, given the time of year.
The learned Adjudicator rejected a similar claim in the October 2013 hearing. Mr Williams admitted that he turned the pool filter off because he thought that he could not clean the pool properly. The parties’ position at this hearing had not changed. The lessor attempted to provide new equipment for the pool[16]. Mr Williams still did not accept that the pool could be maintained. He provided no new evidence to support his position. Even though the claim was new – because it related to a different time period – the learned Adjudicator was right to dismiss it as a second attempt to obtain relief for the same issue.
[16]Email 23 August 2013 at #4.
Notices dated 9 September and 18 November 2013 required all maintenance issues in the maintenance request form dated 28 August 2013, and as noted on 5 September 2013, to be rectified within 7 days. I cannot find a copy of the maintenance request in the material before the learned Adjudicator. It is odd that Mr Williams and Ms Jones would send a maintenance request so soon after filing an application for compensation for so many matters. As the learned Adjudicator could not separate out any news claims that the tribunal did not deal with in October 2013, he was right to refuse any claim based on this notice.
A second notice to remedy dated 18 November 2013 required rectification of the gap between the pool and the pool surround. The learned Adjudicator dealt with that issue in the October 2013 hearing. He did not accept Mr Williams’ evidence. Nothing had changed. There was no reason for the learned Adjudicator to take a different view.
A third notice to remedy dated 18 November 2013 related to the curtains. The learned Adjudicator dealt with that issue in the October 2013 hearing. He did not accept Mr Williams’ evidence. Nothing had changed. There was no reason for the learned Adjudicator to take a different view.
A fourth notice dated 18 November 2013 related to the failure to fix drainage on the left hand side of the property. The learned Adjudicator did order compensation for this item in the October hearing. He ordered the lessor pay Mr Williams and Ms Jones $1,000 compensation.
Mr Williams interpreted this order as $130 per week for the tenancy up to that point. In this hearing, he extrapolated that claim to $130 per week over 34 weeks[17]. In fact, as Mr Williams later admitted[18], the tribunal gave the tenants $50 per week for 20 weeks. The tribunal ordered compensation on 16 October 2013. Mr Williams and Ms Jones vacated the tenancy on 20 January 2014. That is a further period of 13 weeks. At best, Mr Williams and Ms Jones’ could claim $260 compensation. To do so, however, they would have to establish that the land was flooded for the period. There was no such evidence before the learned Adjudicator. He was right to reject this claim.
[17]Transcript page 1-4, lines 9 – 40.
[18]Transcript page 1-5, lines 1 – 10.
There are two notices to remedy issued on 2 September 2013. The first relates to the grey water system. That, too, was the subject of the October hearing. Mr Williams and Ms Jones did not provide any evidence that the problem persisted beyond October 2013. In fact, Mr Williams told the learned Adjudicator that the problem had been fixed at some unspecified time[19]. The learned Adjudicator was right to refuse compensation.
[19]Transcript page 1-31, lines 22 – 28.
The second notice related to a clothes line and tap. These maintenance issues were fixed in October[20]. There can be no claim for compensation that post dates the October hearing.
[20]Transcript page 1-33, lines 22 - 23
The notice to remedy breach dated 18 July 2013 must have been covered by the October 2013 hearing.
The notices dated 3 January 2014, 14 December 2013, 13 December 2013, 2 December 2013, 18 November 2013, 2 September 2013, 30 August 2013, 28 August 2013, 7 January 2014, 23 December 2013, 11 December 2013 and 14 August 2013 all relate to harassment and unlawful entry. They must have been dealt with in the April 2014 hearing and the learned Adjudicator was right to reject a second claim on the same basis.
These parties have engaged in a paper war since the start of the tenancy. Their war has consumed a disproportionate amount of the tribunal’s resources and, no doubt, the Residential Tenancy Authority’s resources.
The RTRA Act attempts to strike a balance between the interests of lessors and tenants. To some extent, both parties must accept the bargain they have made. There is nothing in any tenancy agreement that guarantees a palace, with no problems, at a reasonable rent.
It is no excuse for a lessor to delay essential maintenance because there is no money available to do so. It is no answer to that failure to bombard the lessor with repetitive, insistent and, perhaps, unreasonable demands. A lessor who is distracted by a blizzard of paper is less likely to even recognise, let alone act, on a reasonable request.
Mr Williams and Ms Jones have had their days in the tribunal. They no longer live in the subject tenancy. It is to be hoped that the dispute between the parties is now at an end.
Even though the learned Adjudicator was in error in his application of s 419 of the RTRA Act, 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 should be refused.
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