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- Unreported Judgment
Stanbrook v ParkTrent Properties Group QCATA 52
Stanbrook & anor v ParkTrent Properties Group  QCATA 52
ParkTrent Properties Group
13 April 2017
Senior Member Stilgoe OAM
Ex tempore 13 April 2017
APPEAL – LEAVE TO APPEAL – LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – where the Tribunal below made findings of fact on the evidence before it – whether findings of fact made were able to be substantiated by that evidence – whether Tribunal erred in making those findings – whether grounds for leave to appeal
APPEARANCES and REPRESENTATION:
Ms T Renzella, ParkTrent Properties Group
REASONS FOR DECISION
- Ms Millar and Mr Stanbrook were tenants in a property managed by ParkTrent Properties Group. The tenancy ended on the 21st of May 2016 by order of the tribunal. ParkTrent Properties then brought an application for compensation for numerous things: rent, repair of carpets, locks, cleaning, those sorts of things.
- The proceeding had an unfortunate history in the tribunal below. There was a hearing, then a reopening application and then a fresh hearing. I am only dealing with the second hearing today.
- In that second hearing, from a claim of $4156.71 the adjudicator ordered that a substantial amount of that claim was dismissed, but there was some award to ParkTrent Properties. Mr Stanbrook and Ms Millar applied for leave to appeal that decision. Because it is a decision of the minor civil disputes jurisdiction of the tribunal, leave is necessary. In order to establish grounds for leave, it is necessary to establish two things: firstly, an error by the tribunal and, secondly, a substantial injustice.
- There were six grounds of appeal and I will deal with each of those in turn; however, I make the comment that all of them are alleged errors of fact and, as I pointed out to Ms Millar and Mr Stanbrook, the tribunal will not disturb a finding of fact unless the finding is contrary to the compelling inferences of the evidence below. It is not my job to look at the evidence afresh and come to a different finding. It is simply to see if that finding can be supported by the evidence.
- So turning to the first one, and that is that the tribunal made an error in rent. Mr Stanbrook told me that the tribunal based its calculations on an incorrect ledger which showed that rent was payable at $400 a week, whereas rent was only payable at $395 a week. That was the first error. And the second error was that it did not take account of a missing payment.
- The transcript shows that the second alleged error cannot be sustained, because at page 70 of the transcript, the adjudicator does deduct the $395 of the missing payment, which leaves the error about the basis on which the rent was calculated. As Ms Renzella for ParkTrent pointed out, the initial claim for rent was for $1875.71 and that was substantially reduced to $665.59. Both parties admit that there was considerable confusion on the day.
- It appears that the confusion was generated by a couple of things and I read this into the record so that Ms Renzella might be better prepared in the future. That was that the trust account records were either missing or incomplete and, secondly, as I understand it, the material was given to the parties on the day and quite late.
- It is not the tribunal’s job to recreate accounts. It is the tribunal’s job to look at the evidence based on the ledger and the bank accounts, have the parties point out where the errors are and, doing the best it can on the day, which I note Adjudicator Walsh said several times, to make a calculation. Ms Renzella is equally unhappy with the calculation in relation to rent. Given that it is an error of fact, I am satisfied that the evidence such as it was – and it wasn’t great from either side, as it appears – can support the finding and I am not minded to set aside that finding, because the evidence before the tribunal was capable of finding that fact. So that ground of appeal is not successful.
- The second issue is the water charges. Mr Stanbrook says, and it’s clear from the record, that they did not receive a water bill until some time after the tenancy ended and it was simply an invoice from ParkTrent. He says that he had no way of testing the truth of that bill and that’s right. But the tenancy agreement says, against that, that the tenants had the obligation to pay water bills. Against that, the tenancy agreement says that the obligation to pay the water bill was within one month of the lessor giving the tenant copies of relevant documents.
- I note from the transcript that the adjudicator first of all decided not to give ParkTrent any amount for water because, in his view, there had been non-compliance with the tenancy agreement in that there had not been copies of the water bills sent to the tenants. And Ms Renzella, it doesn’t matter that you didn’t get them from the lessor because you are standing in the shoes of the lessor, so it’s your obligation.
- However, the transcript also shows that you (Mr Stanbrook) agreed to pay a proportion of the water bills at page 73. Adjudicator Walsh asked you if you would agree to half the water bills and you said three times, ‘it’s acceptable’. An appeal tribunal is not going to overturn a consent order. And I note your comment on the transcript, Mr Stanbrook, that you were tired. That was within your hands. You consented to it. I am not going to overturn it.
- The third ground of appeal is the damage to the carpet. Mr Stanbrook says that when they left the tenancy there were no burns in the carpet. They appeared in an inspection report that was done about five days after the tenants surrendered the keys. Mr Stanbrook says, well, there’s lots of reasons why it could have been done in that intervening five day period because there were things happening.
- There is no dispute that there were burns in the carpet. The adjudicator found that the evidence could support a finding that you were responsible for the burns in the carpet. I understand that you have a different view. Put before another adjudicator on a different day, they might have come to a different view, but that’s not the test. If the finding of the adjudicator is not contrary to the compelling inferences of the evidence, again, that ground of appeal fails.
- I’ve already mentioned about the vacation date, but just for completeness I will put it in the reasons. Adjudicator Walsh did not change the date of termination. What he did was accept the date of termination, but because possession was not given up at that date, he ordered compensation for the extra period. So there’s no basis to that ground of appeal.
- The fifth ground of appeal is the remote key – the amount claimed and awarded for the remote key. I think there were three bases – it was unfair, the invoice was fabricated, Mr Stanbrook could’ve bought it cheaper on eBay, and it was still working all right.
- So in relation to the alleged fabricated invoice, the tribunal had an invoice in front of it which to all intents and purposes appeared to be a valid invoice from a company which had an ABN, and had a figure of $80 for a remote control. Mr Stanbrook told me, ’well, we didn’t have a chance to challenge that, and we rang them up later and they don’t sell that sort of thing.’
- Firstly, I’m not accepting fresh evidence. Secondly, I would need that fresh evidence from Surfers Paradise Locksmiths themselves, not from you by hearsay. Thirdly, there is no obligation on ParkTrent to go and source things off eBay if they can have a supplier – a reputable supplier – supply it as a matter of course. Some people have the time and the luxury to go to eBay – they’re running a business. They just go to a supplier and get a figure. And anecdotally, $80 doesn’t seem unreasonable for a garage remote control, but that’s by the by.
- The other thing is whether it was fair wear and tear or broken. The cover was missing – you knew the cover was missing. The adjudicator was entitled to find that a replacement remote control was the appropriate way to deal with that issue. Again, it’s a finding of fact. Again, the evidence can support that the cover was missing, that it needed to be replaced, and that $80 was a reasonable fee. So I’m against you on that one.
- The last one is the filing fee. Mr Stanbrook’s argument in relation to that was that they had to pay the filing fee for the proceeding that led to the termination, and now they are asked to pay a third of the filing fee for this application. I know that you say, Mr Stanbrook, that it was unfair, but the adjudicator looks at this on a case-by-case basis. There was an application before him for compensation. It was partly successful. He could’ve ordered all of the filing fee to be paid by you. In a sense of fairness – and ParkTrent’s probably not happy about this – he ordered that you only pay a third of it. I can’t find an error in that, and even if I could find an error, I’m not satisfied that it resulted in a substantial injustice. And as I reminded you, that’s the test – a substantial injustice. We are talking about $36.23. I know it’s a lot of money to you, but we’ve just spent a lot of time, a lot of paperwork, and a lot of money chasing those things.
- So the application for leave to appeal is refused.
- Published Case Name:
Michael Stanbrook and Katrina Millar v ParkTrent Properties Group
- Shortened Case Name:
Stanbrook v ParkTrent Properties Group
 QCATA 52
Senior Member Stilgoe
13 Apr 2017