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- Unreported Judgment
Mai v Elgersma QCATA 66
Mai v Elgersma  QCATA 66
Leann Elgersma aka Leann Swadling
On the papers
Senior Member Stilgoe OAM
5 June 2017
APPEAL – LEAVE TO APPEAL – LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – OBLIGATIONS, PROHIBITED MATTERS AND PROTECTION FOR LESSEES – INSPECTION AND REPAIR – where property manager inspected property and was satisfied with condition – where owner inspected property some months later and was not satisfied with condition – where claim for damage to tenancy – where claim dismissed – whether grounds for leave to appeal
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3)(a)(i)
Chambers v Jobling (1986) 7 NSWLR 1
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Pickering v McArthur  QCA 294
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
- When Leann Elgersma (also known as Leann Swadling) left her rental property, she received a glowing report from the property manager, Harcourts Gumdale. There were, of course, some minor issues she had to address; specifically two broken lights.
- Two months after Ms Elgersma vacated, Binh Mai, the owner, had her husband, Alan Naidoo, inspect the property. He was not as impressed by the condition of the property as Ms Mai’s property agent had been. Following Mr Naidoo’s inspection, Ms Mai filed a claim for $1,900 relating to a bond clean and the replacement of the carpet. The tribunal dismissed Ms Mai’s claim.
- Ms Mai wants to appeal that decision. 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.
- Ms Mai says the decision was not fair. She says the tribunal’s decision was biased towards Ms Elgersma. She says the decision was not balanced. She says the tribunal overlooked too many faults by the property manager’s witness and allowed ‘them’ to lie in court. She says the tribunal did not allow her to present her evidence or would not accept her evidence. She says Ms Elgersma’s attempt to move the hearing to a different venue raises questions about the validity of the decision.
Was the tribunal’s decision fair?
- I read the transcript of the proceedings. I can find no evidence that Mr Naidoo was treated unfairly or that he was not permitted to present his evidence.
- The decision is not balanced in the sense that Ms Mai was wholly unsuccessful. That is not unusual; if a party cannot establish a case to the tribunal’s satisfaction, the tribunal will not ‘balance’ the result just to make the proceeding seem fair.
- In the same way, a decision that wholly favours one party will seem biased but is simply the result of the tribunal bringing an independent mind to the dispute, listening to both parties, looking at the evidence, and making a decision.
- There is no basis for a finding that the tribunal hearing, or the result, was biased or unfair.
Did the tribunal err in accepting the property manager’s evidence?
- Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it. An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.
- The property manager, Tina Ogilvy, gave sworn evidence. Her evidence was consistent with the documents she prepared during the tenancy and produced to the tribunal. It was consistent with Ms Elgersma’s evidence. Ms Mai does not detail show how Ms Ogilvy was lying. She does not point out the ‘faults’ in the property manager’s evidence.
- The evidence can support the tribunal’s findings and I can find no compelling reason to come to a contrary view.
Was Ms Mai disadvantaged by an attempt to transfer the proceeding to Wynnum?
- This ground of appeal has no basis. Ms Mai filed the claim in the Holland Park registry and it remained in the Holland Park registry. Her property manager had earlier filed a claim in the Wynnum registry but I have not been given a copy of that file. It may be that there was an attempt to consolidate the two files but, in the end, this claim started and finished in Holland Park.
- There is no reasonably arguable case that the tribunal was in error. Leave to appeal should be refused.
- Published Case Name:
Binh Mai v Leann Elgersma aka Leann Swadling
- Shortened Case Name:
Mai v Elgersma
 QCATA 66
Senior Member Stilgoe
05 Jun 2017