Wilson v Next Property Pty Ltd
[2018] QCATA 12
•7 February 2018
CITATION: | Wilson & Anor v Next Property Pty Ltd [2018] QCATA 12 |
PARTIES: | Taylor Maree Clare Wilson |
| v | |
| Next Property Pty Ltd (Respondent) | |
APPLICATION NUMBER: | APL268-17 |
MATTER TYPE: | Appeals |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Gordon |
DELIVERED ON: | 7 February 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | Leave to appeal is refused. The appeal therefore fails. |
CATCHWORDS: | APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN NO APPEAL LIES – leave to appeal – where minor civil dispute heard by Adjudicator – whether any reasonably arguable grounds of appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3) Wilson & Anor v Next Property Pty Ltd [2017] QCATA 145 |
APPEARANCES: |
This appeal was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
In this appeal Taylor Wilson and Anthony Trudgen (the tenants) say that the Adjudicator who heard this residential tenancy dispute made a statement at the start of the proceedings which demonstrated bias and that he had formed a pre-existing view. It is said that the statement made by the Adjudicator showed that he was not going to have proper regard to their case. Because of this, the tenants say they did not tender all their supporting information at the hearing and this caused an injustice.
Section 28 of the QCAT Act is referred to. It is said that the tribunal did not fulfil its obligations under that section to act fairly on the merits of the case and to ensure that all relevant material was disclosed.
In the submissions for the appeal[1] the tenants repeat the above grounds, and set out the Adjudicator’s statement to which objection was taken:
I have had a look at the file and it appears to me that this is not a complex matter. It would be surprising if you were not able to reach agreement.
[1]Received by the tribunal on 25 September 2017.
The tenants also say in their submissions on appeal that Next Property (who were bringing the claim as agents for the owners) had provided false information in a previous claim which showed “prejudice by them towards us” and therefore that the Adjudicator should not have accepted the evidence given by Next Property.
The tenants applied to the Appeal Tribunal for leave to adduce fresh evidence in this appeal,[2] and documents showing the nature of the previous claim and what happened to it was attached to that application. That application was refused by the Appeal Tribunal. Reasons were given for that refusal in Wilson & Anor v Next Property Pty Ltd [2017] QCATA 145. Accordingly I am unable to consider those documents.
[2]Application received by the tribunal on 25 September 2017.
The dispute heard by the Adjudicator was about what should happen to the residential tenancy rental bond after the end of the appellants’ tenancy. The owners were seeking part of the rental bond to cover arrears of rent and water charges, pest control on exit, cost to carry out various repairs and administration costs.
What happened on the day of the hearing appears from the transcript of the hearing, which has been obtained by the Appeal Tribunal. The Adjudicator called the parties into the hearing room and invited them privately to discuss the matter to see if they could reach a compromise. He explained that if they were able to do so, he could then make a consent order reflecting their agreement. He explained that during their discussions they should provide any documents to each other that they wished to rely on.
Then the adjudicator said:
I have had a look at the file and it appears to me that this is not a complex matter. It would be surprising if you were not able to reach agreement. In the event that you are not able to reach agreement, then subject to the availability of time during the course of the day, I will proceed with the hearing. I will hear the evidence of the parties. I will receive the submissions of the parties. After which, I will give a decision in the matter and make the appropriate orders. They may or may not be orders that both parties want, but the matter will be determined on that basis.
On the other hand, if you are able to reach agreement between yourselves, that is always a more desirable outcome, as you will have each contributed to the process and you will each go away with an outcome that is on terms that are acceptable to you. So I now ask that you go outside the hearing room. I’m sure you’ll be able to find an interview room for the purpose of having these discussions. If you could proceed with your discussions on the basis I’ve indicated. Thank you.
The matter was then adjourned. The parties were unable to reach agreement and so they returned to the hearing room and the Adjudicator proceeded to hear the matter. First he identified, with the parties’ assistance, those items in the claim which were still in dispute. He then explained how he was going to approach the matter, about the burden and the standard of proof, and about the procedure that would be followed in the hearing.
He then said:
If either party has any document they wish to rely upon and which is relevant to the proceedings, you should produce the original if you are able to do so, otherwise a copy may be considered. It is important that if you wish to produce and rely upon a document, you should provide a copy to the other party. Is either party wishing to produce to the tribunal any further document for which you have not provided a copy to the other party?
Both sides answered “no” to this question.
The Adjudicator then said:
If at any time during the hearing you need more time to consider a matter or have not seen a particular document being referred to, please bring the matter to my attention. Similarly, if at any time you do not understand the process, practices or procedure being followed or the nature of any assertion made or their legal implication, you should also bring that to my attention.
The Adjudicator then explained to the parties that they were responsible to decide what witnesses and evidence they wished to put before the tribunal and for the presentation and conduct of their own case and further explained the procedure to be followed.
The Adjudicator then said:
Each party should be aware that any claim they wish to make against the other party in respect of the matter will need to be made in these proceedings now before the tribunal. The final decision will be based on the relevant law and the documentary, verbal and other relevant evidence and submissions provided to the tribunal in these proceedings. The decision given in the matter is meant to be final and conclusive as to the rights and duties of the parties in respect of the entire matter. You will not be able to successfully pursue any further claim at a later time or in any proceedings.
Mr Trudgen spoke for himself and for Ms Wilson. He told the Adjudicator that he wished to present an email and that he had given a copy of it to the representative of Next Property. The Adjudicator told him that he could hand it up when giving evidence.[3]
[3]Transcript 1-9 line 23.
Having again clarified with the parties the items in dispute, the Adjudicator said:
If either party wishes to have an adjournment of the application or if further time is requested in preparation for the hearing, now would be an appropriate time to raise any such matter.
Both sides said they were ready to proceed.
The evidence for each side on each of the items in dispute was then given on oath. As the hearing progressed, each side handed up the documents on which they relied for each item, which were marked with exhibit numbers. Three of the exhibits including photographs were handed up by Mr Trudgen.
After all the evidence had been given, the Adjudicator asked both sides whether they had any final submissions before he made a decision in the matter. Mr Trudgen referred to an email provided by Next Property and made comments on it. After a short adjournment the Adjudicator gave his decision and his reasons. He explained again the approach that he was taking to the evidence and the burden and standard of proof, referred to the tenant’s obligations under the tenancy agreement and in the relevant legislation and the correct legal approach to the assessment of damages if a breach were proved. He then carefully went through each item explaining his findings on the evidence given for each one, with reasons in detail.
The appeal
Turning to the grounds of appeal, in sending the parties out to discuss matters the Adjudicator no doubt had in mind the tribunal’s obligation to encourage the early and economical resolution of disputes.[4] By referring to the matter being “not a complex matter” the Adjudicator was simply encouraging the parties to settle rather than demonstrating that he was going to disregard their case. Whilst rental bond matters often need considerable care and skill to resolve, including the careful balancing of the evidence which has been given, it is right to describe them as not complex matters. There was nothing in what the Adjudicator said which could have given the tenants the view that he was not going to have proper regard to their case. There is nothing in the transcript indicating that they held that view at the hearing. Even if the tenants did hold that view at the hearing, the careful way in which the Adjudicator dealt with the dispute, giving each side a full opportunity to be heard, should have negated it.
[4]QCAT Act, s 4(b).
As for the suggestion that anything said by the Adjudicator caused the tenants to be inhibited from tendering all their evidence, this is belied by the opportunities offered by the Adjudicator throughout the hearing for them to do so. The Adjudicator accepted documents produced for the first time from both sides and gave an opportunity at the end for them to add anything they wished. Mr Trudgen took the opportunity to do both of these things. There is nothing in the transcript to suggest that he was inhibited in any way.
Appeals in minor civil disputes can only be brought with the leave of the Appeal Tribunal. Such leave will only be given if there is an arguable case on appeal. Such appeals are only arguable if the decision maker is in error in law, or has made a factual finding which could not be made on the evidence. This is not the case here. Leave to appeal is refused and the appeal therefore fails.
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