Winn v GP Realty
[2010] QCATA 47
•15 September 2010
| CITATION: | Winn v GP Realty [2010] QCATA 47 |
| PARTIES: | Julene Winn (Applicant) |
| v | |
| GP Realty (Respondent) |
APPLICATION NUMBER: APL098 -10
| MATTER TYPE: |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Justice Alan Wilson, President |
DELIVERED ON: 15 September 2010
DELIVERED AT: Brisbane
ORDERS MADE: Application for leave to appeal refused.
| CATCHWORDS : | RESIDENTIAL TENANCIES – COMPENSATION – where applicant vacated premises – where applicant sought return of bond – where adjudicator dismissed applicant’s claims for compensation for renting a private mailbox, and for loss of income and additional expenses associated with attending hearings – where adjudicator awarded respondent with compensation for cleaning expenses – whether adjudicator erred in dismissing the applicant’s compensation claims or in awarding respondent compensation for cleaning expenses PROCEDURAL FAIRNESS – where applicant alleged that adjudicator failed to provide adequate reasons and failed to properly weigh the evidence – whether adjudicator gave sufficient reasons for conclusions – whether conclusions supported by evidence Queensland Civil and Administrative Tribunal Act 2009, ss 3(b), 28(2), (3) and (4), 94(1)(a), 142(3)(a)(i), 145(1) Queensland Civil and Administrative Tribunal Rules 2009, r 43 Attorney-general v Kehoe [2001] 2 Qd R 350, cited Commissioner of Taxation v Baffsky [2001] NSWCCA 332, cited Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, cited Wright v VCAT and Anor [2001] VSC 35, distinguished |
REASONS FOR DECISION
Ms Julene Winn is a former tenant in residential premises at Kingsmill Street in Chermside which were managed, on behalf of the owners, by GP Realty during the course of the tenancy, but are now managed by Place Estate Agents Nundah. Her tenancy commenced in February 2009. A subsequent history of conflict between the parties culminated in several proceedings in the former Small Claims Tribunal and, later, before QCAT.
There is no need to fully address their history. Ms Winn had previously been issued with two Notices to Leave for vacant possession and following her failure to leave GP Realty initiated various proceedings against her in the former tribunal which were ultimately dismissed. Undeterred, GP Realty issued a third Notice to Leave sometime in October 2009 with which Ms Winn complied; according to her own words “... I decided I’d had enough and I would leave”.
The date for vacant possession was 23 December 2009. Relations between the parties continued to deteriorate, even following vacancy, and there were later disputes about the actual date of vacancy, the need for subsequent cleaning charges, and return of the rental bond. Ms Winn commenced proceeding in QCAT and the matter was heard in the Minor Civil Disputes jurisdiction before a QCAT adjudicator on 5 May 2010.
In addition to the return of the rental bond, Ms Winn sought compensation for the QCAT application fee, the rental of a private mailbox, and for alleged loss of income for having to attend the QCAT hearing and the previous Small Claims Tribunal hearings. She also sought various associated expenses including those for travel, telephone calls, photocopying, film processing and photographs.
Mr Murphy, who appeared on behalf of Place Property, pursued a cross-claim against her for $804 compensation for cleaning expenses incurred following vacancy, including $430 for the replacement of the carpet in the third bedroom; $99 for steam cleaning of carpets in the other two bedrooms; $255 for general cleaning services of the entire unit; and $20 for lawn mowing services.
At the conclusion of the hearing the learned adjudicator delivered an oral decision and ordered that Ms Winn’s claims for compensation be dismissed and that the Residential Tenancies Authority pay out to her, from the bond, $1,020, and to the respondent $400 for cleaning expenses.
Ms Winn applied for leave to appeal the adjudicator’s decision. Leave is required to appeal a decision from a minor civil dispute proceeding: Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), s 142(3)(a)(i). 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 and a reasonable prospect that the applicant will obtain substantive relief?[1] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[2] 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?[3]
[1] Cachia v Grech [2009] NSWCA 232 at [13].
[2] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 at [6].
[3] 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.
Ms Winn, in her application form and in subsequent written submissions advanced sixteen grounds of appeal. The majority allege that the manner in which the proceeding was conducted and conclusions formed by the learned adjudicator were tainted by procedural unfairness for failure to provide sufficient notice of the hearing; giving inadequate reasons for compensating the owners for the cleaning expenses; making wrong findings of fact; and failing to properly consider the evidence.
Under the QCAT Act the tribunal is required to observe the rules of natural justice (procedural fairness) (s 28(3)(a)) and ensure proceedings are conducted fairly and according to the substantial merits of the case (s 28(2)) but, otherwise, has a broad discretion to act with as little formality and technicality, and with as much speed, as is necessary to ensure proper consideration of the matter (s 28(3)(d)).
Relevantly, too, the tribunal may admit into evidence any document despite non-compliance with any time limit or procedural requirement under the Act, an enabling Act or the rules (s 28(4)). This broad discretion sits comfortably with one of the main objects of the QCAT Act which is to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick (s 3(b)). That exhortation is of particular relevance in the minor civil disputes jurisdiction, where proceeding are generally conducted expeditiously (s 94(1)(a)).
With these legislative strictures in mind, I turn to the applicant’s grounds for leave to appeal. As observed earlier, many of her submissions can be categorised into the broad grounds described above.
Ground 1(i)
Ms Winn alleges that she did not receive sufficient notice of the hearing date to cater for the availability of her witness. The file shows that both parties were issued a Notice of Hearing in compliance with the time requirements set out in the Queensland Civil and Administrative Rules 2009 (QCAT Rules)[4]. It was always open to Ms Winn to seek an adjournment of the hearing, but she did not do so.
Grounds 1(ii), 2, 6 and 12
[4] R 20(2)
Ms Winn alleges that she was not given proper notice of the allegations made against her with respect to the cleaning expenses, and that she was not provided sufficient opportunity to be heard on those matters. These allegations refer to the fact that GP Realty had not filed any response to her claim or any counter-application for cleaning expenses (ground 2); and that Mr Murphy was allowed to tender and rely on an Exit Condition Report which had not been properly served on her within the prescribed time frame following vacant possession (grounds 1(ii), 6 and 12). She cited the decision of Gillard J in Wright v VCAT and Anor [2001] VSC 35 at 70 in support of these allegations.
QCAT Rule 43 provides that a party to a minor civil dispute, other than a minor debt claim[5], is not required to file a response or counter-application unless it wishes to do so. The learned adjudicator cannot be criticised for accepting the respondent’s claim for expenses at the hearing. As to the Exit Condition Report, the Tribunal is not bound by the ordinary rules of evidence and may admit into evidence any document despite non-compliance with any time limit or procedural requirement under the QCAT Act, enabling Acts or rules: s 28(4).
[5] QCAT Rules, Schedule, a ‘minor debt claim’ is a claim to recover a debt or liquidated demand
Nonetheless to ensure that Ms Winn was aware of the cleaning expenses that were being sought, the learned adjudicator, as the transcript of proceedings shows, gave her the opportunity to read over and comment on each of the items identified in the Report. On any view, she was not denied procedural fairness in that respect.
The circumstances in Wright distinguish it from the present case. It involved two separate proceedings in the Victorian Civil and Administrative Tribunal (VCAT), in two applications made by former tenants against a landlord. The landlord was not served with either application and had no notice of the hearings and, unsurprisingly, did not attend them. There was no indication that the presiding VCAT member hearing the applications was satisfied that the landlord was properly served, but the tribunal proceeded to make adverse findings of fact and orders against the landlord. Nothing of that sort happened here. Ms Winn attended the hearing, supplied evidence to support her submissions, and was provided adequate opportunity to reply to the respondent’s allegations.
Grounds 3, 4, 5, 7, 8, 9, 10, 11, 14
These grounds concern the opposing evidence relating to the cleaning expenses, and the reasons for the learned adjudicator’s decision to award $400 compensation to the owners for those expenses. Ms Winn submits that the learned adjudicator failed to give any proper explanation for that part of his decision. She relies on the judgment in Dornan v Riordan (1990) 95 ALR 451, a case in which an appeal court set aside a decision of the Pharmaceutical Benefits Remuneration Tribunal for failing to provide adequate reasons for its findings of fact. The Court stated at 461 that the reasons of that Tribunal were “…so deficient that it is, in our opinion, impossible to ascertain whether there was any other error in the decision-making process.”
The nature and extent of the obligation to provide full reasons varies according to the nature of the case[6]. In QCAT’s minor civil disputes jurisdiction, giving immediate oral decisions accords with the spirit and purpose of the QCAT Act. Those decisions will not be exposed to criticism which fails to acknowledge the circumstances in which they are given, or the pressure of the adjudicator’s caseload. That proposition is not exclusive to the minor civil disputes jurisdiction or the work of adjudicators; as Spigelman CJ remarked in Commissioner of Taxation v Baffsky [2001] NSWCCA 332 at [49]:
It is not appropriate to parse and analyse judgments given on an ex tempore basis by judges of the District Court, who have a considerable caseload.
Here, the learned adjudicator made it clear that the circumstances in which the dispute arose, and its elements, did not warrant a minute examination of each aspect of the evidence about the need, or otherwise, for cleaning the premises after Ms Winn departed. He found that some cleaning was necessary, and settled on $400 as an appropriate – if, as he also said, an arbitrary – figure.
This jurisdiction would be unworkable if its decision makers carried the burden of resolving every minor aspect of every one of the many thousands of minor disputes which are brought for determination in it. Once there was evidence which warranted a finding that some cleaning was necessary then, in the context of the issues and the sums involved in this case, the course taken by the adjudicator accords with the statutory imprecations to QCAT discussed earlier.
The remaining contentions flow from grounds 3 and 4 and concern the weight of evidence in support of the various allegations. Ms Winn supplied photographs and the Entry Condition Report in support of her submissions, while Mr Murphy relied on various cleaning invoices and the Exit Condition Report. As the transcript shows, the opposing contentions regarding the items listed in the Exit Condition Report (which formed the basis of the dispute concerning the cleaning expenses) were extensively explored by the parties[7].
[7] T24 - 32
In particular, there was a great deal of debate about whether the agents were allowed under the lease to engage cleaners to steam clean the carpets (unfortunately, neither party thought to bring a copy of the lease to the hearing) and whether the carpet in the third bedroom had actually been replaced. Mr Murphy alleged that the carpets had not been cleaned in the first and second bedrooms, and that there were two large burns marks the size of a standard clothes iron in the third bedroom requiring the complete replacement of that carpet. Ms Winn alleged that she thoroughly cleaned the carpets before she left and that she hardly used the third bedroom. She also firmly believed that the carpet in the third bedroom had not been replaced and that the purported invoice was only a quote and not an authentic invoice.
The transcript shows that Mr Murphy supplied a quote and a tax invoice from Just Carpets. He explained, in terms of the latter, that when a cleaner seeks payment they submit a tax invoice and once the payment is made, a copy of that tax invoice is retained. Further, as Mr Murphy explained, the carpet was ordered from Melbourne and coincidentally (but unsurprisingly) it was the exact same colour and style as the carpet that was replaced.
As to the finding that some allowance ought to be made for cleaning expenses, Ms Winn also alleged that:
(i) it was not open for the learned adjudicator to make any findings of fact as to the necessity of the cleaning expenses, for lack of evidence (ground 5);
(ii) in any case, her photographs were conclusive evidence that the unit was left ‘immaculate’ at the time of vacancy (ground 7);
(iii) Mr Murphy’s purported invoice for the replacement of the carpet in the third bedroom was only a quotation and that the Exit Condition Report was falsely completed - meaning that none of this evidence could validly support his oral testimony (grounds 8 and 9); and
(iv) there was no provision in the lease for steam cleaning of the carpets (grounds 10 and 11).
The reasons make it clear the learned adjudicator was alert to these contentions. He said:
The unit is three years old; the applicant was the only tenant. She states she lived alone for the most part; she kept the property in good condition and cleaned it very well before she left. She produces photographs in support of that contention; she further states that on the initial entry into the property, she had to clean the place herself, due to the fact that there was a lot of builder’s dust, in particular, left, even though it was a brand new unit it had not been properly cleaned in terms of eradication of builder’s dust and debris, et cetera.
In effect, her argument would appear to be that she left the property as she found it, fair wear and tear accepted. In these matters tenants, owners and agents have different standards when it comes to maintenance; different visual perceptions, different ideas of what constitutes fair wear and tear. In some cases, what might be referred to as industry norms.
I am satisfied that the applicant made a concerted effort to clean property when she left. I am also satisfied, however, that some cleaning and replacements were necessary. I am not going to go through the evidence, item by item; I am going to impose an arbitrary figure, which will be deducted from the bond. I note that the expenses claimed by the applicant total $804. I am going to allow $400 – sorry, rather the expenses incurred by the respondent total $804. I allow $400 to the respondent on account of those expenses.
The learned adjudicator understood Ms Winn’s submissions, and properly weighed them in the context of the evidence before him. He also had, of course, what has been called the ‘feeling’ of the case before him which this appeal tribunal, limited to the transcript, cannot fully share[8].
[8] Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 at 637; and see Chambers v Jobling (1986) 7 NSWLR 1 at 25
The exercise of weighing and making findings about evidence is not a mathematical or scientific exercise, but one based on a reasonable search for the truth in the circumstances of each particular case[9]. Findings of fact are usually not disturbed on appeal unless they lack the necessary sustenance from the evidence[10].
[9] TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267
[10] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Although terse, the reasons demonstrate a clear process of reasoning, supported by oral and photographic evidence, and a fair and reasonable exercise of the adjudicative process. Although the learned adjudicator did not specifically touch on the issue concerning the ‘right’ to use steam cleaning (as there was no evidence before him to contradict the agents right to have them cleaned in this manner) the passage set out earlier certainly points to the inference that he accepted that it was within industry standards to use steam cleaning for the purposes of cleaning the carpets.
All of the conclusions reached in the reasons were reasonably open on the evidence, and there is nothing in the transcripts to indicate that the reasons were deficient, or not in accordance with the evidence in the case.
Finally, in light of the order to only compensate the owners for half of their claimed cleaning expenses and to return the balance of the bond to Ms Winn, the learned adjudicator can be forgiven for not specifically addressing the issue of the application fee, which was not material to the final decision. Certainly, it does not justify an appeal.
Grounds 13 and 15
Ms Winn alleges that the adjudicator misunderstood, and wrongly failed to award, her claims for loss of income and associated expenses in attending the hearings at the former tribunal, and at QCAT. As the learned adjudicator explained to her, residential tenancy disputes are concerned with matters arising under the Residential Tenancies and Rooming Accommodation Act 2008 (RTRA) – not unrelated expenses incurred as a consequence of having to initiate or defend claims. The tribunal simply lacks jurisdiction and her claims were untenable.
Ms Winn also alleged that the adjudicator erred in not awarding her any compensation for having to rent a private mailbox. The file shows that she had issued to GP Realty a Form 11 Notice to Remedy Breach in July 2009 alleging that the agents were in breach of the tenancy agreement for failing to repair the lock on the mailbox. At the hearing the learned adjudicator directed her attention to s 419(3) of the RTRA which provides that, where a tenant or lessor has a claim based on an alleged breach of the residential tenancy agreement, they must apply to the Tribunal within 6 months of becoming aware of the breach. As the learned adjudicator correctly pointed out, she was out of time to seek any compensation in this respect.
Ground 16
Ms Winn’s final submission is unusual. She alleges that the Tribunal denied her procedural fairness by allowing GP Realty to receive the $400 compensation for cleaning expenses before she could apply for a stay of the adjudicator’s decision. The argument is misconceived. Once a decision is handed down it is immediately enforceable: the start of an appeal in QCAT has no bearing on the operation of the original decision unless and until a stay is actually granted: QCAT Act, s 145(1).
Conclusion
There is no apparent error in the decision of the learned adjudicator, and nothing in Ms Winn’s inordinately lengthy and detailed submissions establishes any ground warranting the grant of leave to appeal.
and does not include a tenancy matter
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