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Warr v Shipton QCATA 23
Warr v Shipton  QCATA 23
31 January 2017
Senior Member Stilgoe OAM
Ex tempore reasons 31 January 2017
APPEAL – LEAVE TO APPEAL – LANDLORD AND TENANT – LEASES AND TENANCY AGREEMENTS – RESIDENTIAL TENANCIES LEGISLATION – bond dispute – compensation
APPEAL – LEAVE TO APPEAL – alleged error by tribunal below – whether tribunal treated a party unfairly – whether grounds for leave to appeal
REASONS FOR DECISION
- My first order is going to be to remove Ms Warr as a party to this appeal, and the reason that I’m doing that is because the original application was brought by Mr Shipton only against Philip Warr. Ms Warr was never a party to the original application, and, therefore, she cannot be a party to the appeal.
- But going to the substance of the application for leave to appeal now. Mr and Mrs Warr were tenants of a property owned by Mr Shipton. The property had two levels. Mr and Ms Warr lived upstairs and other tenants lived downstairs. The lease started on the 10th of July 2015 and ended on the 25th of May 2016. The rent was $285 a week. In an earlier application, there was an application by Mr Shipton to remove Mr and Ms Warr on the basis of a breach of tenancy agreement, and that was approved by the tribunal, and Mr Shipton obtained a warrant of possession from the tribunal on the 3rd of June 2016.
- The application which is the subject of the appeal was only in relation to compensation. There were a number of matters of compensation – carpet cleaning, ceiling repairs, bond cleaning and rubbish removal, all of which were denied. An outdoor furniture setting replacement cost was also denied. However, the tribunal did give an award of $1425 for rent arrears and some minor items for a set-top box, downlights, replacement of the lock and repainting.
- I should firstly deal with what appears to be a counter-claim in the appeal. Mr and Ms Warr have claimed $200,000 each for medical expenses, $1,430 for moving costs and $54,400, which relates to a rental adjustment, which is a total of $455,830. I should state at the outset that the appeal tribunal cannot deal with those matters. The limit of the minor civil disputes jurisdiction is $25,000. If you have a claim, it needs to be brought in a separate application, and this deals with one of the issues that you raise. If you feel that you have a claim for discrimination, the tribunal might have jurisdiction to deal with it, but not in this proceeding. You need to take advice about that, but I will not be dealing with any of the matters of the counter-claim.
- As I mentioned to Mr and Ms Warr, the application for leave to appeal can only succeed if you demonstrate an error by the tribunal which creates a substantial injustice. When I asked Mr and Ms Warr what the errors were, there were a number of errors which they attributed to Mr Shipton. They firstly said that the evidence that Mr Shipton gave was not relevant, and if that is so, then the tribunal, as it did, would ignore it. For example, the claim for the rubbish removal – the tribunal didn’t accept it.
- Mr and Ms Warr complained about the warrant of possession and the early entry by Mr Shipton. I don’t have sworn evidence about that specifically. I noticed that the transcript did say something about that, but if there was a breach by Mr Shipton of your quiet enjoyment, then that, again, is a separate action. It is not a matter for this tribunal.
- The next point was that the tax invoice for the bond clean was a New Zealand document. As I mentioned during the hearing, I don’t think that is so. It appears to me that it is a pro forma tax invoice which can be used in either of Australia or New Zealand, and, depending on which jurisdiction you are in, you insert the appropriate numbers. It does not matter anyway, because the Tribunal did not award damages for the bond clean. So, even if it was an invalid document, it is not an error because there was no order about that.
- Mr Warr then mentioned that the council has shut down the space that they were renting. That may be so, but that is not an error by the Tribunal. Mr Warr then said that the bond should have been paid to them. That was the very essence of the Tribunal proceedings - where the bond would go - and the Tribunal found that the bond should go to Mr Shipton.
- Some further allegations: that anyone can change a rent ledger. That is true, however, the Tribunal heard evidence from both parties, and, on the day, preferred the evidence of Mr Shipton about the rent that was owing. Mr Warr told me that Mr Shipton never did any repairs to the premises. Again, that is a matter for a separate proceeding.
- Similarly, showing people through the premises before you left the premises: two things about that; firstly, Mr Shipton had a duty to mitigate his loss which means he had an obligation under the law to try to find another tenant as quickly as possible. However, if he did enter the premises without giving the appropriate notices, that might be a breach, but it is not a breach that goes to this proceeding.
- Mr Warr told me that Mr Shipton cut the lock without permission. Again, that might be a breach, and in some circumstances it might be that the Tribunal would decline to order the cost of about $29 for replacement of that lock. Again, however, Mr Shipton had an obligation to mitigate his loss, and because one of the two elements that you must demonstrate on leave to appeal is that there is a substantial injustice, I am not minded to overturn the $29, because if he had not done that, then you might well have been paying more rent in the long run. So I cannot find a substantial injustice, nor can I really find an error by the Tribunal.
- The next point Mr Warr made was that Ms Warr was not on the lease, and that is true, and that is why Mr Shipton did not bring an application against Ms Warr, only against Mr Warr.
- Mr Warr told me about the electricity bill. That is not part of the proceedings before the Tribunal.
- He talked about ill treatment from Mr Shipton and the tenants downstairs. Again, that was not part of the proceedings. There was no counterclaim for that, so there is no error by the Tribunal.
- I then come to the errors allegedly committed by the Tribunal, and they are three: firstly, that the Tribunal treated Mr Warr poorly. He did not get a say, and he did not get a chance to explain, and he was not able to tell them about his rights. The second, which is related to that, is that he was told to shut up or he would be removed from the Court, and the third is that the Tribunal did not believe him.
- I will deal with the last one first. These matters are always a question of credit. There are two different versions of the story, and the Tribunal had to make a decision on the day which one of the stories the Tribunal believed. An appeal Tribunal will not overturn a finding of fact unless there is no evidential support for the finding of fact. If the evidence can support the finding of fact, then an appeal Tribunal cannot set it aside; it is only if there is no evidence, and there is a compelling reason to set it aside.
- I have read the transcript. I am of the view the evidence can support the Tribunal’s finding, and I can find no compelling reason to set it aside.
- Which brings me to the last point that Mr Warr was treated unfairly. As I have said, I have read the transcript carefully. There was an extensive interchange between the Tribunal and the parties. It is, perhaps, not ideal, the way that it was held, because there were constant interruptions by both parties and by the Tribunal. It was clear that the Tribunal was attempting to get to the nub of the issue as quickly and as concisely as possible. There is evidence of an extensive interchange from Mr, and indeed, Ms Warr, who was called as a witness to the Tribunal proceeding. And I understand why Mr and Ms Warr might feel that they are hard done by because the result is not what they wanted, but I cannot find any evidence that the Tribunal treated them unfairly.
- I could find no evidence that Mr Warr was told to shut up. He may have been asked to be quiet. There may have been, if the behaviour persisted, a warning that if he was not quiet and he continued to interrupt, he would be removed from the Tribunal, but that is quite different from presenting an argument that he was threatened with removal, and that he was not given his rights to put his case clearly on the day.
- For those reasons, I am not satisfied that Mr Warr has established an error, and therefore leave to appeal is refused.
- Published Case Name:
Philip Warr v Eric Shipton
- Shortened Case Name:
Warr v Shipton
 QCATA 23
Senior Member Stilgoe
31 Jan 2017