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Narangba v Demears QCATA 9
Narangba v Demears  QCATA 9
Ray White Narangba
On the papers
Senior Member Stilgoe OAM
11 January 2016
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where claim for bond – where claim for slashing grass denied – where gates missing where tenant claimed gates stolen – whether evidence to support tenant’s position – whether grounds for leave to appeal
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Pickering v McArthur  QCA 294
Chambers v Jobling (1986) 7 NSWLR 1
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
- Meisha Demears rented a semi-rural property through Ray White Narangba. At the end of her tenancy, Ms Demears file an application for the return of her bond. Ray White applied for compensation for repairs and maintenance. While the tribunal allowed some items of repair, it did not compensate Ray White for the cost of slashing the property or the cost of replacing gates, fencing, hose fittings and plants.
- Ray White wants to appeal the tribunal’s decision to refuse compensation for those items.
- Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. 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.
- Ray White is disputing the tribunal’s findings of fact. The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions. The test is not whether, given the same evidence, I would come to a contrary view. An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case. Therefore, Ray White’s application for leave to appeal will only succeed if it can demonstrate that the tribunal’s findings of fact are contrary to the compelling inferences of the case.
- Predictably, however, Ray White’s submissions are no more than a re-presentation of the evidence before the tribunal. While the tribunal has an obligation to act informally, I do not think it is asking too much that applicants for leave to appeal actually give some attention, and prepare submissions directed, to the actual error the tribunal is supposed to have committed.
- Ms Demears left the property on 9 April 2015. The exit report prepared by Ray White on 15 April 2015 shows some long grass in the paddock. The tribunal dismissed this claim because Ray White did not request a quote for slashing until May 2015. The slashing did not occur until late June 2015.
- The tribunal was entitled to infer from the delay in having the slashing done that the grass, although long, did not need slashing at the time Ms Demears left the property. The evidence can support the tribunal’s findings and I can find no compelling reason to come to a contrary view.
- There was no dispute that the gates were missing. There seemed to be little dispute that the neighbour had the gates.
- The tribunal hearing generally presented as a very confused one. Although Ms Demears was represented, she often spoke on her own behalf. Ms Demears’ representative often spoke when the tribunal was, or should have been, seeking evidence or submissions from Ray White. The tribunal itself, consisting of two Justices of the Peace, appeared to talk over the parties and each other.
- Ray White did not assist the tribunal in that confusion. The hearing was adjourned so that it could present receipts for the claimed expenses. It used a non-standard exit condition report, which provided no room for tenant’s comments.
- Ms Demears told the tribunal the neighbour stole the gates. Ray White tried to direct the tribunal’s attention to a text message Ms Demears sent but, before it could address the tribunal on that evidence, the tribunal decided that the ‘gates are out’. Ray White tried to address the tribunal about the detail of the text message but the tribunal dismissed that evidence.
- I am not satisfied that the tribunal took the time to consider properly the effect of the text message. A party before the tribunal is entitled to have the tribunal look at the evidence and hear submissions before making a finding. The tribunal did not do so in this case. Leave to appeal should be allowed.
- The text message is as follows:
Ms Demears: Need to bring the gates back. The fukers (sic) are charging me for them.
Recipient: Think I found them, Richard mentioned some money you stilled (sic) owed him for some work he did a while back he is really broke and wonder if you had any so I could put it into his jail account today please xo
- Ray White submitted that the text meant Ms Demears had given the gates away in the first place. The tribunal, having already decided not to give Ray White compensation for the gates, interpreted the text as meaning only that the person had the gates and Ms Demears wanted them back.
- The tribunal dismissed the claim for the gates because the removal of the gates could not be attributed reliably to Ms Demears. Ms Demears vacated the property on 10 April 2015. Ray White provided the exit condition report on 15 April 2015 which, despite its deficiency, identified that the gates were missing. Ms Demears does not advise Ray White that the gates were stolen until 19 April 2015.
- Ms Demears had an obligation to leave the premises, as far as possible, in the same condition they were in at the start of the tenancy. She was obliged to give Ray White notice of the loss of the gates as soon as practicable. She had an obligation to take all reasonable steps to mitigate any loss or expense as a result of her act or omission Ms Demears told the tribunal that she reported the theft of the gates to the police at which point she was told that, because she was not the owner of the gates, she could not report the theft. She was told that the owner had to report the theft. She did not, however, advise Ray White about the theft until after she left the tenancy. That delay is not consistent with her obligations and inclines me to prefer Ray White’s interpretation of the text message: that Ms Demears gave up possession of the gates and then tried, unsuccessfully, to recover them.
- Ms Demears’ delay in advising of the absence of the gates denied the owner the opportunity to report the absence to the police and/or lodge an insurance claim. Ms Demears should pay for the missing gates as she did not comply with her statutory obligations.
Hoses, connectors and sprinklers
- The entry condition report notes ‘large blue hose x 2 and fittings as pictured’. Ray White claimed for the replacement of the hose and fittings on the basis that they were missing from the property when Ms Demears vacated.
- The tribunal was not satisfied that Ray White had established its case for the cost of the hose and fittings. I agree. The exit condition report refers to many problems with the grounds but it does not contain any reference to a missing hose. Ray White’s first email of 15 April has no reference to missing hoses or fittings. Ms Demears told the tribunal she left the hose at the property. The property was tenanted immediately after she left. If the hose later went missing, Ray White cannot say that it was Ms Demears who was responsible for it. The evidence can support the tribunal’s findings and I can find no compelling reason to come to a different view.
- Leave to appeal should be granted and, to the extent of the claim for compensation for the missing gates, the appeal is allowed.
- The decision of 31 August 2015 is set aside. Because the bond has already been distributed in accordance with the order of 31 August 2015, I order that Meisha Demears pay Ray White Narangba $1155.90 by [21 days].
 QCAT Act, s 142(3)(a)(i).
 Pickering v McArthur  QCA 294 at .
 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
Chambers v Jobling (1986) 7 NSWLR 1 at 10.
 QCAT Act s 3(b).
 Transcript page 1-37, lines 33 – 35.
 Transcript page 1-18, lines 28 – 45.
 Transcript page 1-24, lines 31 – 32.
 Transcript page 1-25, line 1.
 Transcript page 1-26, lines 38 – 40.
 Transcript page 1-27, lines 1 – 34.
 Transcript page 1-37, lines 36 – 39.
 Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 188.
 Ibid, s 217.
 Ibid, s 362(3).
 Transcript page 1-7, lines 35 – 42.
 Transcript page 1-8, lines 42 – 46.
- Published Case Name:
Narangba v Demears
- Shortened Case Name:
Narangba v Demears
 QCATA 9
Senior Member Stilgoe OAM
11 Jan 2016