Worms v Marshall

[2014] QCATA 113

1

CITATION: Worms v Marshall [2014] QCATA 113

PARTIES:	Roger Worms Liz Worms (Applicants/Appellants)
v
Sally Jane Marshall (Respondent)

APPLICATION NUMBER: APL139 -14

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Stilgoe, OAM

DELIVERED ON: 13 May 2014

DELIVERED AT: Brisbane

ORDERS MADE:

1.    Leave to appeal granted.

2.    Appeal allowed.

3.    The decision of 24 March 2014 is set aside.

4.    Sally Jane Marshall shall pay Roger Worms and Liz Worms $1,044.30 by 10 June 2014.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY DISPUTE – where order for filing material – where order sent to wrong email address – where agent did not file material prior to hearing – where agent appeared by telephone and evidence not available to tribunal - whether grounds for leave to appeal

Pickering v McArthur [2005] QCA 294

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

1. Mr and Ms Worms own a property that Ms Marshall rented through Mackay Rentals. At the end of the tenancy, Ms Marshall applied for the return of her bond. Mackay Rentals opposed that application because there was outstanding rent and damage to the property. Two Justices of the Peace, sitting in the minor civil disputes jurisdiction of the tribunal, ordered that Ms Marshall receive the entire bond.

2. Mr and Ms Worms want to appeal that decision. They say that there was evidence of rental arrears and damage. They have filed fresh evidence in support of their claim for compensation.

1. The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Mr and Ms Worms have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?[1]

   [1]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.

1. On 17 March 2014, Mackay Rentals applied to transfer the hearing to Mackay. The tribunal refused the application, allowed the agency to attend by telephone, but made orders for the filing of material at least 48 hours before the hearing.

1. It is obvious for the transcript that Mackay Rentals knew nothing of that order[2]. The tribunal file shows that the order was sent by email to the parties on 21 March 2014. Unfortunately, the tribunal did not send the order to the email address for Mackay Rentals. Therefore, Mackay Rentals could not have known of the order to file material before the hearing. Without that order, Mackay Rentals had no obligation to file the material before the hearing, because the tribunal does not require respondents to residential tenancy disputes to file a response. The fresh evidence should be admitted. Because Ms Marshall and Mr Marshall have filed evidence in response it, too, should be admitted.

   [2]See, for example, transcript page 1-6, lines 1-4.

1. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as His Honour then was) in Pickering v McArthur[3]:

   There are numerous authorities, in varying language but with unvarying emphasis, that 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.

   [3][2005] QCA 294 at [3].

2. The fresh evidence demonstrates that there is a claim for compensation, which is disputed. The learned Justices could not consider the evidence because of a tribunal error. That error resulted in a failure to provide natural justice, although through no fault of the learned Justices. Leave to appeal should be granted and the appeal allowed.

3. Mr and Ms Worms claim $1,491.30 rent on the basis that Ms Marshall paid rent up to 4 December 2013 but Mackay Rentals did not receive the keys until 20 December 2013.

4. Ms Marshall says that she posted the keys back on 5 December 2013 and she cannot understand why it took so long to get them back to Mackay Rentals. Clause 38 of the tenancy agreement requires a tenant to return the keys at the end of the tenancy. Until the keys are returned, the tenant has possession. If the tenant has possession of the premises, then rent is payable. It is no answer for Ms Marshall to say that she posted the keys back. It is no answer to say that the agent was advertising the premises for rent before it received the keys. The agent is required to mitigate the lessors’ loss of rent and it did so by starting to look for a new tenant immediately.

5. Ms Marshall was obliged to pay $1,000 per fortnight, which is $71.428 per day. There are sixteen days between 4 December and 20 December. Mr and Ms Worms claim rent of $1,044.30. That amount is slightly less than 16 days at $71.428 per day. It is reasonable and should be allowed.

6. Mr and Ms Worms also claim a call out fee of $110 for a plumber who attended when Ms Marshall was supposed to be home, but wasn’t. Mr and Ms Worms have not supplied a copy of an entry notice or communication with Ms Marshall to confirm that she would be home on this date. That sum is not allowed.

7. Mr and Ms Worms have claimed $150 for mowing and garden maintenance. The invoice is dated February 2014. As I have previously commented, Ms Marshall left in December. Mr and Ms Worms have not claimed for compensation for rent past December 2013. If the premises were re-tenanted, Mr and Ms Worms cannot claim this sum from Ms Marshall. If the premises were not re-tenanted, then Mr and Ms Worms have not explained why Ms Marshall should still be responsible for the garden. This sum is not allowed.

8. Mr and Ms Worms have also claimed $187 for repairs. There are four items on the painter’s invoice: a hole in the entry wall; chips to the right side of the window; a dent to the wardrobe in the main bedroom; and stains on the laundry bench.

9. The entry condition report records the chips, dent in the bedroom and stains to the laundry bench. The only ‘new’ item is the hole in the entry wall. Unfortunately, the painter’s invoice does not record a charge per item. Because I am unable to separate out the charge for the wall, this claim should not be admitted.

10. The decision of 25 March 2014 is set aside. Ms Marshall shall pay Mr and Ms Worms $1,044.30 by 10 June 2014.