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- Unreported Judgment
Hill v Tambourine Mountain Rentals and Sales QCATA 95
Hill v Tambourine Mountain Rentals and Sales  QCATA 95
Christopher Frank Hill
Lesleigh Pamela Hill
Tambourine Mountain Rentals and Sales
On the papers
Senior Member Stilgoe OAM
20 July 2017
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN NO APPEAL LIES – where oral evidence taken at hearing when tribunal ordered evidence to be filed by affidavit – whether a failure to provide natural justice – whether grounds for leave to appeal
LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – OTHER MATTERS – where five-month delay in filing claim after notice of unresolved dispute – where Residential Tenancies Authority urges parties to file claim as soon as possible after receipt of notice – where Act silent on time limits for filing claim – where tribunal took delay into account when considering credit of witnesses – whether tribunal erred – whether grounds for leave to appeal
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(a), s 47, s 48, s 61, s 98(1)(a)
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
- Christopher and Lesleigh Hill rented a house through Tambourine Mountain Rentals and Sales. They vacated the house on 8 January 2017. There was the usual debate about compensation for damage caused by the tenancy but on 18 January 2017, the Hills signed a refund of rental bond form. The Hills thought they signed a form where the amounts to be refunded were not filled in because they were told that the agency would ‘fix it up’ and the bond would be returned to them. The version of that form before the tribunal showed that the Hills would receive no refund.
- The Hills did not accept that they would not get any bond back. They lodged a dispute resolution request with the Residential Tenancies Authority on
26 February 2017. They filed an application in the tribunal on 8 August 2017, claiming payment of the bond. The tribunal dismissed their application.
- The Hills want 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.
- The Hills say the tribunal should not have found that the time they took to file the application was excessive. They say Julie Hayden, the property manager they dealt with during the tenancy, should not have been permitted to give evidence because she did not file an affidavit. They say that the tribunal’s comments about the agent’s loss of reputation ignores the impact this decision had on their ability to rent property.
Should the tribunal have considered the delay in filing the claim?
- The Hills states that they delayed only five months before filing their claim because they were exploring all other avenues of compensation. They say that the QCAT website states that they had six years to file a claim. They say, in this context, a five-month delay is not long. They note that the time from application to decision was six months.
- The tribunal noted that the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) has no express time limit for the filing of a claim after Residential Tenancies Authority conciliation has failed. The tribunal referred to the letter from the Residential Tenancies Authority, enclosing the notice of unresolved dispute, which states:
You can choose to lodge an application to have the matter heard by the Queensland Civil and Administrative Tribunal (QCAT). If you decide to apply to QCAT, you must do so as soon as possible.
- The tribunal told the Hills that the delay in lodging an application was a matter for the tribunal’s discretion. So far, none of that is controversial.
- The tribunal then stated that the delay in lodging the application was against the Hills’ application succeeding.
- If that was the only reason for the tribunal’s decision to dismiss the Hills’ application then I agree that would not be an adequate basis. But it was only one factor of a number which persuaded the tribunal to prefer Tambourine Mountain Rentals and Sales’ version of events.
- The tribunal was not in error by commenting on the Hills’ delay in filing their claim.
- The Hills also note Tambourine Mountain Rentals and Sales’ non-compliance with the directions for filing material. They say the tribunal should have ‘disallowed’ the response.
- Tambourine Mountain Rentals and Sales’ response was three days late. The tribunal has the power to extend time for the filing of material. The Hills did not point to any prejudice or disadvantage in the late filing of material: instead they say that the conduct was disrespectful. The tribunal does not penalise parties who are ‘disrespectful’ unless that amounts to an abuse of process, a frivolous or vexatious proceeding or causes disadvantage. There is no suggestion that a three-day delay had any of those results.
Did the tribunal err in allowing Julie Hayden to give evidence?
- The Hills point out that the tribunal adjourned the hearing to allow the parties to file evidence. They note that paragraph 5 of the tribunal’s order of
27 October 2016 stated that the parties could not rely on evidence other than the affidavits filed.
- The Hills’ reference to paragraph 5 was not a reference to the full text of that paragraph:
The parties may not rely on evidence other than the affidavits and documents filed in terms of these orders and documents already filed with the Tribunal at the hearing unless the Tribunal grants leave.
- The tribunal decided to take evidence from Julie Hayden on a specific issue – diary notes that were before the tribunal. Ms Hayden’s evidence was important, because she was the person who signed the refund of rental bond form. The tribunal wanted to know whether the figures for the refund were inserted before or after the Hills signed the form.
- The tribunal invited the Hills to cross-examine Ms Hayden. Ms Hill responded by telling the tribunal that what Ms Hayden said is not what happened. She then told the tribunal she did not want to ask Ms Hayden any questions. Mr Hill told the tribunal that he had covered everything Ms Hayden said in his evidence. He did not want to ask Ms Hayden any questions.
- The tribunal may, on its own initiative, call any person to give evidence. Of course, in exercising that power, the tribunal must observe the rules of natural justice. Ms Hayden’s evidence was critical to the issue the tribunal had to decide. While Tambourine Mountain Rentals and Sales may be criticised for failing to file a statement from Ms Hayden, the tribunal’s actions in calling her to give evidence was, in all the circumstances, reasonable. I am satisfied that, by giving the Hills an opportunity to cross-examine Ms Hayden, the tribunal also met its obligation to provide natural justice and procedural fairness. The tribunal was not in error.
Should the tribunal have taken account of the potential loss of reputation?
- The Hills say that the tribunal told them a decision against the agent could lead to damage to its reputation and could result in the agent being struck off. They advise that, because of this case, they have been blacklisted and cannot find a rental property.
- The basis for the Hills’ case was that Tambourine Mountain Rentals and Sales had engaged in misleading and deceptive conduct. Indeed, they filed a consumer/trader claim, rather than a claim in the tribunal’s residential tenancy jurisdiction.
- In giving its reasons for decision, the tribunal pointed out that a claim for misleading and deceptive conduct is a serious matter, that the Hills were essentially alleging fraud, and that the standard of proof in such matters was higher than the normal test of the balance of probabilities. In the course of that discussion, the tribunal noted:
There are consequences well beyond this case, if I were to make a finding that you had been deliberately misled and deceived by the agent, and that would include the potential for the agent, in due course, to be struck off as an agent.
- The tribunal was explaining to the Hills why it had to give serious consideration to the evidence and why, in this case, it did not accept that the Hills had proven their case. The comments were appropriate and I can find no basis for finding an error by the tribunal.
- There is no reasonably arguable case that the tribunal was in error. Leave to appeal should be refused.
 QCAT Act. s 142(3)(a)(i).
 Pickering v McArthur  QCA 294, .
 Transcript page 1-29, lines 17 – 19.
 Transcript page 1-29, lines 1 – 15.
 Transcript page 1-29, line 35.
 Transcript page 1-29, lines 36 – 37.
 QCAT Act, s 61.
 Ibid s 47, s 48.
 Transcript page 1-18, line 30 – 32.
 Transcript page 1-20, lines 44 – 47.
 Transcript page 1-22, lines 7 – 8.
 Transcript page 1-22, line 28.
 Transcript page 1-22, line 43.
 Transcript page 1-23, lines 1 – 3.
 Transcript page 1-23, lines 8 – 16.
 QCAT Act, s 98(1)(a).
 Ibid, s 28(3)(a).
 Transcript page 1-30, lines 4 – 17.
 Transcript page 1-30, lines 16 – 19.
- Published Case Name:
Hill v Tambourine Mountain Rentals and Sales
- Shortened Case Name:
Hill v Tambourine Mountain Rentals and Sales
 QCATA 95
Senior Member Stilgoe OAM
20 Jul 2017