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Priestly v McAuley[2017] QCATA 127

CITATION:

Priestly v McAuley [2017] QCATA 127

PARTIES:

Bryan Priestly

(Applicant/Appellant)

 

v

 

Claire McAuley

(Respondent)

APPLICATION NUMBER:

APL085-17

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Holzberger

DELIVERED ON:

21 November 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Leave to Appeal is granted.
  2. The Appeal is allowed.
  3. The decision that Claire McAuley pay Bryan Priestly the sum of $949.50 is set aside.
  4. Claire McAuley must pay Bryan Priestly the sum of $3,558.22 by 4.00 pm on 15 December 2017.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES  – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – appeal from decision in minor civil dispute matter – residential tenancy – error of law and fact – whether procedural fairness and natural justice had been afforded – whether counter-application out of time – calculation of overpayment of rent

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 96, s 97, s 419(3)

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. [1]
    This is an appeal against a decision of the Tribunal made on 18 January 2017 in residential tenancy matter number T357/16 by Bryan Priestly, a former tenant of a property owned by the respondent to the appeal, Claire McAuley.
  2. [2]
    On 4 November 2016 Mr Priestly made application to the tribunal seeking return of a bond and overpaid rental in the sums of $1,440.00 and $2,005.72 respectively.
  3. [3]
    On 9 January 2017 Ms McAuley made a counter-application claiming compensation for damage to her property she said was caused by Mr Priestly in the sum of $3,666.00. Her response to Mr Priestly’s application was that his claim for return of the bond was out of time and should be dismissed and any overpaid rent should be applied to the damage he had caused.
  4. [4]
    The tribunal’s decision was to allow Mr Priestly’s claim for return of the bond in the sum of $1,440.00 and overpayment of rent in the sum of $1,536.00 but to offset against that sum the sum of $2,139.00 being compensation for damage to the property. It also awarded him costs of $112.50, resulting in an order in his favour in the sum of $949.50.
  5. [5]
    Mr Priestly’s appeal against that decision requires leave. There are five grounds of appeal.

Appeal Ground 1 - Error of Law (Section 419(3)) - Out of Time Application

  1. [6]
    An application to the tribunal in respect of a breach of a residential tenancy must be brought within six months of the applicant becoming aware of the breach.[1]
  2. [7]
    Ms McAuley’s counter-application was made eight months after becoming aware of the breach was filed on 9 January 2017.
  3. [8]
    On her evidence Ms McAuley inspected the property on 9 May 2016.[2] She put into evidence a handwritten exit condition report dated and signed by her dated 9 May 2016. She became aware of the breach on that day.
  4. [9]
    Her counter application is out of time and Mr Priestly succeeds on this ground.

Ground 2 – Error of Law (Section 97 Apportionment of rent)

  1. [10]
    This ground identifies an error of fact rather than law. The tribunal did apportion the rent but calculated the apportionment incorrectly.
  2. [11]
    Mr Priestly filed in the tribunal with his application a copy of a general tenancy agreement dated 20 March 2015, which provided for a term commencing 1 May 2015 and ending 2 November 2015.
  3. [12]
    Ms McAuley put into evidence a second general tenancy agreement also apparently dated 20 March 2015 for a term commencing 3 November 2015 and ending 2 May 2016.
  4. [13]
    Ms McAuley’s evidence that the tenancy expired on 2 May 2016 appears[3] to have been, initially at least, accepted by the tribunal but by the time overpayment of rent was considered the tribunal appears, with some assistance from Mr Priestly, to have erroneously altered that date to 9 May 2016 and made its calculations on the basis that rent was payable until that later date.
  5. [14]
    The correct calculation is contained in the email and tenant ledger from the former managing agent Ray White Buderim filed by Mr Priestly in the sum of $2,005.72.

Appeal Ground 3 – Error of Law (Section 96 Rent)

  1. [15]
    This ground fails. Section 96 prohibits the lessor or the lessor’s agent from applying an amount paid as rent for any other purpose. It would not prohibit the tribunal offsetting overpaid rent against a successful counterclaim.

Appeal Ground 4 –Error of Fact (Bond Dispute)

Appeal Ground 5 – Procedural Fairness and Natural Justice

  1. [16]
    It is convenient to consider these two grounds together.
  2. [17]
    I find that Mr Priestly has not been afforded procedural fairness and the principles of natural justice have not been observed at the hearing.
  3. [18]
    In particular I am satisfied that he was not given adequate notice of the various materials produced at the hearing by Ms McAuley and the evidence given by her mother. He was not given an opportunity to consider it. There was no adjournment offered to him to allow him to consider the material or to make any objection to it.
  4. [19]
    Having regard to his limited participation in the process I am not satisfied that reasonable steps were taken to ensure that he understood the practices and procedures of the tribunal and in particular his right to object to the evidence produced without notice and his right to cross-examine witnesses.
  5. [20]
    While I do not believe the weight of Mr Priestly’s evidence is sufficient to overturn the findings of the tribunal, because of his success in respect of Appeal Grounds 1 and 5 it is unnecessary for him to succeed on Ground 4.

Conclusion

  1. [21]
    I determine that Mr Priestly is entitled to a refund of his bond in the sum of $1,440.00 and refund of overpaid rent in the sum of $2,005.72. I allow costs of $112.50 being the filing fee of the original application.
  2. [22]
    I make orders as follows:
    1. Leave to appeal is granted.
    2. The Appeal is allowed.
    3. The decision that Claire McAuley pay Bryan Priestly the sum of $949.50 is set aside.
    4. Claire McAuley must pay Bryan Priestly the sum of $3,558.22 by 15 December 2017.

Footnotes

[1] Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 419(3).

[2] Transcript, p 16.

[3] Transcript, pp 12 and 13.

Close

Editorial Notes

  • Published Case Name:

    Bryan Priestly v Claire McAuley

  • Shortened Case Name:

    Priestly v McAuley

  • MNC:

    [2017] QCATA 127

  • Court:

    QCATA

  • Judge(s):

    Member Holzberger

  • Date:

    21 Nov 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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