Zulueta v Professionals Thornton Real Estate
[2013] QCATA 141
•13 May 2013
| CITATION: | Zulueta & Anor v Professionals Thornton Real Estate & Ors [2013] QCATA 141 |
| PARTIES: | Adeliza Zulueta Fernando Zulueta (Applicants/Appellants) |
| v | |
| Professionals Thornton Real Estate Jonathan Frere Fran Benton (Respondent) |
| APPLICATION NUMBER: | APL018-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 13 May 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where the applicants leased a residential property – where the property agent applied to the Tribunal for vacant possession – where the Tribunal ordered the tenancy agreement was terminated and issued a warrant of possession – where the applicants applied to the Tribunal for a full refund of the bond moneys – where the Tribunal ordered the bond be paid out to the lessees and lessors – where the applicants seek leave to appeal that decision – whether leave to appeal should be granted PRACTICE AND PROCEDURE – REASONS FOR DECISION – ADEQUACY – where the Adjudicator did not give reasons at the conclusion of the hearing – where the Adjudicator made findings and gave reasons for those finding during the course of the hearing – where the parties did not seek written reasons under s 122 of the Queensland Civil and Administrative Tribunal Act 2009 – whether failure to provide reasons at the end of the hearing is a denial of natural justice – whether error of law Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 122 Attorney-General v Kehoe [2001] 2 Qd R 350, cited |
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.
REASONS FOR DECISION
Mr and Mrs Zulueta rented residential premises as Brookwater for a year ending on 7 August 2013.
When they and the lessors and the lessors’ managing agent were unable to agree on an increased rent after that date the agent brought proceedings for vacant possession. On 8 August 2012 a QCAT Adjudicator ordered that the agreement be terminated as from midnight on a date two months later, 8 October 2012 and, thereafter, that a warrant for possession be issued to expire on 22 October 2012.
Mr and Mrs Zulueta subsequently quit the premises on about 8 October. Under the tenancy agreement the bond was $1,960.00. Mr and Mrs Zulueta say that the managing agent signified to them that the lessors intended to claim the entire bond for cleaning and repairs to the premises, and that prompted them to begin proceedings in QCAT seeking a full refund of the bond to them.
Another QCAT Adjudicator heard that matter on 14 December 2012 and ordered that the bond be paid out by the Residential Tenancies Authority as to $878.50 to the lessors, and $1,081.50 to Mr and Mrs Zulueta.
The Zuluetas seek leave to appeal that decision. Their grounds refer back to the order of the original Adjudicator in August 2012 which they now say was wrong, unjust and unfair. They have never, however, sought leave to appeal that decision.
They also allege that the second Adjudicator made errors in deciding which of the competing claims about cleaning and repairs to accept, and that he should have ordered that the entire bond be paid out to them.
I have listened to the audio recording of the hearing of the proceedings before the Adjudicator on 14 December. The learned Adjudicator did refer to the earlier decision, and it may be that this explains the Zuluetas reference to it now.
By the time the matter came on for hearing Mr and Mrs Zulueta had long abandoned the premises and references, in their appeal documents, to the earlier hearing are both legally and practically irrelevant – in particular, in the circumstance that they did not seek leave to appeal that earlier decision in the time allowed under the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’), or apply for an extension of that time.
The only unusual aspect of the audio recording is that it reveals that the learned Adjudicator did not, at the conclusion of the hearing, give reasons – at least, in the traditional sense of drawing together and announcing his various findings of fact and law about the disputes between the parties concerning cleaning and repair costs and, thereby, explaining his decision to the parties.
The recording also shows, however, that as he traversed each aspect of the parties’ claims and counter-claims about those matters in the course of the hearing he made specific findings and in each instance did tell the parties, albeit very shortly, why he was making a finding one way or another.
It is also material that no party sought any further reasons under s 122 of the QCAT Act, and neither have Mr and Mrs Zulueta complained about the absence of reasons in their submissions in support of their application for leave to appeal.
The nature and extent of the obligation to provide full reasons varies according to the nature of the case.[1] 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[2]:
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.[3]
[1]Attorney-General v Kehoe [2001] 2 Qd R 350 at 356; Tully v McIntyre [2001] 2 Qd R 338.
[2](2001) 122 A Crim R 568.
[3]Ibid 578.
This is a case in which the reasons for the decision were given piecemeal, at various points during the hearing. It is preferable that, even if findings are made in this manner as the hearing progresses, there ought still be a summary clearly comprising final reasons for the decision at the conclusion of the hearing.
In the absence, however, of any attack upon the adequacy of the reasons in the appellants’ submissions it is compelling that they understood the findings the learned Adjudicator was making from time to time in the course of the hearing, and the mathematical basis for the order he announced at the very end.
These unusual aspects of the hearing process do not establish any error in the primary decision giving rise to a concern that any substantial injustice has been caused to the appellants. Nor is there any question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.
Nor do the Zuluetas’ submissions reveal any appellable error in the process by which the learned Adjudicator received evidence, considered, and adjudicated upon each of the parties’ claims and cross-claims about cleaning and repair costs. His findings were consistent with, and fairly open upon, the evidence and the weight of the evidence before him.
For these reasons, the application for leave to appeal must be refused.
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