Hempel v Richardson & Wrench Hervey Bay
[2018] QCATA 170
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- Unreported Judgment
- Hempel v Richardson & Wrench Hervey Bay[2018] QCATA 170
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Hempel v Richardson & Wrench Hervey Bay[2018] QCATA 170
Hempel v Richardson & Wrench Hervey Bay[2018] QCATA 170
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Kalika Hempel, Shane Swayn v Richardson & Wrench Hervey Bay [2018] QCATA 170 |
PARTIES: | KALIKA HEMPEL (First Applicant) SHANE SWAYN (Second Applicant) v RICHARDSON & WRENCH HERVEY BAY (Respondent) |
APPLICATION NO/S: | APL115-17 |
ORIGINATING APPLICATION NO/S: | MCDT30/17 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 23 November 2018 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Justice Daubney, President |
ORDERS: |
|
CATCHWORDS: | APPEALS – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY DISPUTE – whether magistrate took into account all evidence Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 135, 142, 143, 147 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 227, 220, 191, 309 |
Applicant: | Self-represented |
Respondent: | Self-represented |
APPEARANCES: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). |
REASONS FOR DECISION
- [1]The applicants were the tenants of a property in Hervey Bay. The property had a water tank which was leaking.
- [2]The respondent was the agent for the property. The applicants advised the respondent of the water tank issues in May 2016. On 7 July 2016 they served on the respondent a notice to remedy breach calling for the tank to be fixed by 15 July 2016. They served another notice on 29 August 2016 calling for the breach be remedied by 6 September 2016. The respondent organised inspections of the water tank but the damage was not rectified.
- [3]In the meantime, the applicants had fallen behind in rental payments. The respondent served a notice to remedy breach on 12 August 2016 seeking for the arrears to be paid by 22 August 2016, another notice on 20 September 2016 demanding that the breach be remedied by 29 September 2016 and a further notice on 10 October 2016 for the breach to be remedied by 17 October 2016. None of these notices were complied with. The respondent served numerous notices to vacate on the applicants. Ultimately, the applicants vacated the premises in November 2016. The respondent claimed that the applicants still owed rental moneys.
- [4]During the tenancy, a plethora of email correspondence passed between the parties concerning the issues with the water tank and the tenants’ failure to pay rent. The matter had the flavour of a standoff, with the applicants not paying rent while they had problems with the tank, and the respondent not attending to the tank while rent was not paid.
- [5]In the midst of the dispute, on 7 September 2016 the tenants lodged a dispute resolution request with the Residential Tenancies Authority (“RTA”).[1] However, this process did not achieve a resolution of the dispute.
- [6]Consequently, on 14 October 2016 the applicants made an urgent application to the Tribunal for relocation because of an emergency or health or safety reasons. The application came on before a learned Magistrate at Hervey Bay sitting as the Tribunal. The Magistrate determined that the type of claim made by the tenants could not be determined unless they had actually vacated the property. The applicants were informed that their application, as filed, could not be heard until that had occurred.
- [7]On 30 November 2016, the applicants advised the Tribunal (via the Hervey Bay Courthouse) that they had vacated the property and asked that their matter now be heard. It initially came before a Magistrate on 16 December 2016, at which time it came to the attention of the Magistrate that the bond in respect of the tenancy of the property had been released to the applicants. It was ordered that a copy of the form lodged with the RTA to procure that disbursement be provided to the Tribunal. It was also brought to the respondent’s attention that if it wished to pursue the question of outstanding rental, then a cross-application needed to be filed. The application was adjourned to enable these steps to be carried out.
- [8]On 19 December the applicants made a complaint concerning the conduct of the learned Magistrate who had conducted the hearing on 16 December. Accordingly, on 20 December 2016, (the adjourned date for the hearing) the particular Magistrate refused to hear the matter and ordered that a cross-claim be filed by the respondent. The proceeding was adjourned for hearing on 28 February 2017.
- [9]The applicants’ application and the respondent’s cross-application were heard by a different Magistrate on 28 February 2017. Neither party was legally represented at the hearing. In ex tempore reasons, the Magistrate identified that the applicants had brought claims totalling $9,377 under various sections of the Residential Tenancies and Rooming Accommodation Act 2008 Qld (“RTRA Act”). Those claims were $3,000 for the cost of water for which they had paid to replenish the leaking tank (which the applicants claimed to be entitled to offset against the rent otherwise payable for the property), $1,500 for the bond they had paid, and $4,877 for the cost of alternative accommodation to the end of the original tenancy. The cross-application was for unpaid rent totalling $3,659.29.
- [10]The learned Magistrate held, in effect, that the applicants’ claim for accommodation was misconceived because at no time were they in need of emergency accommodation. In relation to the claim for the water costs, the Magistrate noted the claim was for $3,000, but the evidence in the form of invoices tendered by the applicants amounted, on the Magistrate’s calculations, to only $2,035. The applicants also disputed the rent ledger on which the respondent relied to prove the quantum of the rent arrears, but failed to adduce any evidence of rent payments other than those recorded in the ledger. The Magistrate therefore accepted the amount of unpaid rent as disclosed in the ledger.
- [11]The Magistrate’s decision was that the applicants should pay the respondent $2,559.29. That was determined by calculating the total rent in arrears as $3,659.29, less half the costs of refilling the water tank. The Magistrate considered that half the cost of refilling the tank should be appropriately apportioned to the respondent because, whilst there was a leak in the tank which should have been rectified, the applicants had clearly used water from the tank, and this use had to be accounted for. The Magistrate therefore deducted from the rent owing the sums of $1,100 for the faulty tank plus an extra $165 for costs incurred in cleaning the tank.
- [12]Moreover, it transpired that the applicants had lodged a form with the RTA seeking disbursement to them of the bond for the property. They had, however, signed the form in the place reserved for signature by the agent, ie the respondent. As a consequence of lodging the request in that form, the RTA refunded the bond in full to the applicants. The RTA has since been notified of the error and advised that the disbursement of the funds in full to the tenants was a ‘mistake’. The bond money has since been returned to the RTA.
- [13]As a consequence of that repayment to the RTA, the order initially made by the Magistrate was amended to take account of the bond of $1,500 being held (again) by the RTA and the RTA and the applicants were ordered to pay $1,500 and $1,059.29 respectively to the respondent.
- [14]As is not uncommon in cases like this, both sides sought to use the present application to relitigate the case and raise a multitude of allegations. On analysis, however, the only issue in respect of which an application for leave to appeal could properly lie is the decision concerning the allowance of a reimbursement for refilling of the water tank and the effective offset against rental arrears.
Leave to Appeal
- [15]As the initial hearing was for a minor civil dispute (‘MCD’), the applicants require leave to appeal.[2]
- [16]The appeal process is not an opportunity for applicants to have their case automatically reheard. The applicants must state the reasons for the application.[3] In this case, their proposed appeal is on the basis that not all of their water receipts were taken into account.
- [17]Consideration of the applicants’ case has not been assisted by the manner in which they have put material before the Tribunal. Whilst their application and submissions were filed as required, the applicants subsequently attempted to file further evidence without leave or any proper explanation.
- [18]On 1 September 2017 Carmody J made directions for the applicants to clearly identify the reasons for their claim. His Honour’s directions were as follows:
Kalika Hempel and Shane Swayn must file and serve written submissions clearly identifying the reasons they -
- (a)deny owing the rent claimed of $3,659.29 or any lesser amount;
- (b)why they are entitled to set off water costs of $3,065 as compensation for amenity loss against any rent liability; and
- (c)what error they say the tribunal made in finding that the rental arrears totalled $3,659.29.
- [19]The applicants subsequently informed the Tribunal that their proposed appeal case was to the following effect:
- They spent $3,065.00 for water in the last six (6) months of the tenancy due to water tank leak which was never fixed as promised.
- Documentary proof has been given to QCAT of rental payments up to the vacation date of 15 November 2016 with the last payment in cash but the receipt (previously provided to QCAT) is now lost.
- The lessor breached the duty to maintain the premises in good repair and withdrew essential water services and facilities. Not having a working water tank and having to pay for more water than they should have entitled them to a rent decrease.
- [20]These assertions by the applicants are, however, problematic. For example, on 30 August 2017, the first applicant wrote to the Tribunal stating that attached to the email were copies of ‘water receipts totalling $3,065’. As appears from the file, however, there was only one receipt for $170 attached to that email.
- [21]I have inspected the entirety of the file which was before the Magistrate in the original hearing, and have identified only $1,695 worth of water receipts as having been tendered for consideration by the Magistrate. It would appear that the Magistrate “double counted” two of those receipts, the respondent has not taken any point about the calculations.
- [22]In the course of the present application, the applicants have purported to put on evidence of a water receipt that was not filed in the original proceeding, without obtaining leave. In that regard, Carmody J had on 2 May 2017 made a number of directions, including that neither party would be allowed to rely upon any evidence which was not before the original decision maker without leave of the appeal tribunal. No such leave having been sought or granted, the further evidence sought to be relied on by the applicants will be disregarded.
- [23]As appears from the applicants’ contentions outlined above at [19], the applicants have asserted that they filed proof of rent receipts with the Tribunal but that those receipts are now lost. I have reviewed the contents of the file. There are no such rent receipts on the file.
- [24]In any event, the applicants sought to explain the inability to produce rent receipts to the Tribunal by reference to them having been lost in Cyclone Debbie. That, with respect, does not explain a failure to produce those receipts to the hearing before the learned Magistrate in February 2017. It is a matter of public record that Cyclone Debbie occurred in late March 2017.
- [25]In short:
- There can be no challenge on the evidence as to the amount found by the Magistrate to have been spent on water by the applicants;
- There was no evidence before the Magistrate to challenge the quantum of the rental arrears, calculated as per the respondent’s rental ledger;
- The purported ground of appeal claiming for a rent decrease was not, in fact, part of the claim pursued before the learned Magistrate.
- [26]There is, therefore, no proper basis for the grant of leave to appeal in the present case.
- [27]The application for leave to appeal is refused.