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- Unreported Judgment
Morris v Parktrent Properties Group QCATA 131
Morris v Parktrent Properties Group & Richardson  QCATA 131
Sheril Marie Morris
Parktrent Properties Group
Application and Appeals
28 September 2017
20 November 2017
THE APPEAL TRIBUNAL ORDERS THAT:
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where the applicant was ordered to pay compensation for damage to the property during the tenancy – where the applicant disputes the amounts ordered and the cause of the damage – where the applicant claims the entry condition report was invalid – whether the tribunal was unreasonable or erred in preferring the respondent’s evidence and finding against the applicant – where leave to appeal is refused
APPEARANCES and REPRESENTATION (if any):
Sheril Morris (self-represented)
Tami Renzella (property agent) and Brodie Richardson (on behalf of the respondent)
REASONS FOR DECISION
- The applicant (former tenant) was ordered to pay $4,986.48 of the $6,143.68 claimed for compensation under s 429 Residential Tenancies and Rooming Accommodation Act 2008 and costs to the property agent for:
- Rent arrears $1,979.43
- Carpet laying $578.80
- Floor Repairs $2,077.60
- Unpaid water consumption $246.15
- QCAT Filing Fee $112.50
- $2,077.60 was awarded as fair compensation for having to reinstate the living room and main bedroom floor. The $1,736.00 claim for the carpet replacement was discounted by two-thirds or $1,157.20 down to $578.80 representing the portion of damage attributable to the applicant.
- The applicant applies for leave to appeal the order (except the rent arrears) for breach of natural justice, legal error and faulty findings of fact.
- The former tenant took possession of the property on 22 November 2015. The General Tenancy Agreement (GTA) started on 21 December 2015 for a fixed term of twelve months to 18 December 2016.
- Clause 17 (Item 12.2) of the GTA clearly states that water usage will be charged to the tenant. There is no evidence the tenant has ever paid any amount despite being invoiced on 25 August 2016.
- Parktrent was appointed property manager on 24 June 2016.
- The applicant indicated in an email to Parktrent on 19 August 2016 that the tenancy would be ending on 21 August 2016. Rent was paid up to and including 24 July 2016 and the applicant conceded rent was payable up to 9 August in lieu of 14 days’ notice. Parktrent claims that rent was owed up until 8 September 2016 because the tenancy was for a fixed term and a new tenant was not found until after the repairs were completed. It provided a copy of the rental ledger regarding the rent arrears in support.
- A vacate inspection was carried out on 25 August 2016.
- As evidence of the condition of the property at the start of the tenancy Parktrent produced the entry and exit reports from the Morris’ tenancy, an exit report from the previous tenancy, and a letter from the lessor refunding the bond in full to the tenant’s predecessor. The applicant’s entry condition agreement is signed and none of the statements of fact in it are qualified or disputed on the document itself.
Is there evidence of unfairness amounting to a denial of natural justice?
- A ‘detailed’ affidavit of Kevin Walker (builder) with attached invoices for repair work was tendered as evidence of rectification costs (see especially invoice #419 for $2077.60 regarding the damage to the floor in the main bedroom and living room). The invoice included “… labour for sanding and polishing floor boards in the living area and main bedroom, hire of floor sander, sandpaper, floor putty, floor polish.”
- The other bedrooms were also recarpeted at the lessor’s expense to retain uniformity throughout the premises (see invoice #1321 from Hall’s Tile and Carpet Court for $1736.00).
- The applicant’s claims that the affidavit was produced at the hearing without allowing her sufficient time to prepare her case. She also claims that the two witnesses for Parktrent had not provided statements or affidavits to consider before the hearing.
- However, the hearing procedure was explained to her at the outset. She had no queries. She was given the opportunity to cross-examine witnesses and make submissions. She did so without complaining that she was disadvantaged or surprised. She was also given the chance after her summing up to raise any extra issues that she may have with the proceedings. She raised some matters but did not address any perceived procedural unfairness issues.
- There is no reasonably arguable case of denial of natural justice.
Did the tribunal make an error of law?
- Any undepreciated new for old order without deducting the price of fixing the pre-existing damage would be unjustified. The invoiced ‘supply and install’ cost for new carpet at the property was $1,736.00 for “brindle carpet on new gold foam underlay to large and main bedroom”. The full replacement amount was claimed despite the damage being centred on “burns … around the fireplace” because “you can’t replace one section of it without the rest of it looking funny”. However, the tribunal reduced the claim by two-thirds to account for pre-existing damage and depreciation. This was consistent with the accepted evidence, within the discretionary range, and unimpeachable on standard appeal principles.
Did the tribunal make errors of fact?
- The applicant must demonstrate that findings of fact were made that were not reasonably open on the evidence before the tribunal. The disputed floor damage, which was admittedly not there at the beginning of the tenancy, she claims was not her fault but possibly due to a leaking garden tap and the lessor’s failure in their responsibility to fix moisture and mould problems. The applicant claims she brought the moisture problem to the lessor’s attention verbally.
- She contends that the significant damage to the timber flooring was due to a pervasive mould issue, a case of “rising damp”, and that the marks on the carpet around the fire place, as well as paint splatters, were there on taking possession.
- The respondents claim the damage is caused by dog urine or otherwise the fault of the tenant.
- Damage to the floorboards is clearly visible in the photographs produced at the hearing by the respondent. The entry and exit reports are more consistent with the tenant’s failure to return the premises in the condition as taken except for fair wear and tear.
- Central to the applicant’s argument is her challenge to the validity and evidentiary value of the entry condition report because she says it was completed from photographs only on 22 December 2015 – 4 weeks’ after her tenancy began – and therefore contrary to s 65 Residential Tenancies and Rooming Accommodation Act 2008 (Qld). She claims it did not reflect the true condition of the property but was unable to satisfactorily explain why she did not disagree with any misstatements on the report at the time.
- At the time the applicant moved in the premises were being managed by the lessor personally who was unfamiliar with RTA procedures or documentation.
- The lessor’s son, Brodie Richardson, acted as her agent in completing the entry condition report when he was visiting from Roma on 21 December 2015. He had previously leased the premises himself through LJ Hooker. The previous tenant to the applicant was also a family member who had taken over the tenancy from him. The property was rented to the applicant because she was in a relationship with the lessor’s brother.
- Mr Richardson swore the entry condition report was completed “just before the tenancy commenced”, however possession had been taken by the applicant before the repainting was finished, and before the GTA was signed. At that time there were scuff marks and “a few paint splatters on the original timber flooring” but only “standard” wear and tear in high trafficked areas.
- The entry condition report was based on a previous inspection, Mr Richardson’s knowledge of the property, and photographs provided by the applicant.
- When challenged in cross examination about the “RTA thing that entry condition reports are done prior to the tenant going in” Mr Richardson responded to the effect that the applicant had been given a copy of the entry condition report and did not object within the 3 days allowed. In any event, she was compensated $300 for any cleaning that might not have been listed due to (ongoing) renovations; everything else was based on the previous inspection.
- The entry report may not have been completed ‘by the book’, but the applicant gave no indication at the time that she did not agree with what was stated about the condition of the property.
- Despite what the applicant contends, findings of fact contrary to her explanations for the damage were open on the available evidence.
- The exit condition report from the previous tenant verified that the carpet was cleaned before handover.
- The tribunal considered the evidence of the builder, Mr Walker, to be crucial in resolving disputed facts. He confirmed that the applicant was in a hurry to move in before the renovations were finished. His evidence was consistent with the nature, timing and cause of the damage alleged by the respondent.
- The tribunal was in a better position than the appeal tribunal to assess the trustworthiness of the witnesses, both their reliability and credibility, based partly on demeanour. The tribunal was persuaded by the respondent’s witnesses to the standard of probability that, fair wear and tear excepted, the applicant “… did not leave the premises in the same condition at the end of the tenancy as what is was at the start”.
- The tribunal’s findings of fact were rational, evidence based and reasonably open. The order that applicant pay the respondent compensation for rectifying the damage should not therefore be disturbed.
- Leave to appeal is refused.
- Published Case Name:
Sheril Marie Morris v Parktrent Properties Group and Carol Richardson
- Shortened Case Name:
Morris v Parktrent Properties Group
 QCATA 131
20 Nov 2017