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Mepham v Wenham[2018] QCATA 188

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Mepham v Wenham & Anor [2018] QCATA 188

PARTIES:

DEREK JOHN AMOORE MEPHAM

(appellant)

 

v

 

DAVID WENHAM

(first respondent)

JUDITH WENHAM

(second respondent)

APPLICATION NO/S:

APL086-18

ORIGINATING APPLICATION NO/S:

MCDT176-18 (Southport)

MATTER TYPE:

Appeals

DELIVERED ON:

3 December 2018

HEARING DATE:

22 November 2018

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

Application for leave to appeal refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where tenant held over after fixed term of tenancy – where tenant sought recovery of entire bond – where lessors made a counter application for compensation – where no evidence led by tenant at hearing to challenge evidence presented by the lessors – where claims as to statements made by the tenant at hearing not supported by a perusal of the transcript of the proceedings – where Adjudicator awarded the lessors their costs of filing the counter application though the tenant recovered more than half his bond and the lessors recovered less than half of the monies claimed in their counter application 

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 419

Alexandria v Thiele [2018] QCATA 174

Fox v Percy (2003) 214 CLR 118

Pickering v McArthur [2005] QCA 294

APPEARANCES &

REPRESENTATION:

Applicant:

Self-represented

First Respondent:

Self-represented by R Latter

Second Respondent:

Self-represented by R Latter

REASONS FOR DECISION

  1. [1]
    Mr Mepham was the tenant of a unit on Ferny Avenue, Surfers Paradise under a fixed term residential tenancy agreement which ended on 5 December 2017. He stayed more than another week because he was delayed taking up residence at new premises.
  2. [2]
    After he vacated, the lessors’ agent claimed the bond to cover various items of compensation and rent said to be owing. Mr Mepham filed an application in the Tribunal seeking recovery of his full bond. The lessors filed a counter application seeking payment of $1,970.71 and the claims were heard before an Adjudicator on 23 March 2018.
  3. [3]
    The learned Adjudicator ordered Mr Mepham pay the lessors $550 for wall repairs and $165 for door repairs and pay the lessors’ filing fee for their counter application in the amount of $116.40. Those sums were ordered to be paid out of the bond held by the Residential Tenancies Authority. The balance was ordered to be returned to Mr Mepham.
  4. [4]
    Mr Mepham is unhappy with that decision. He has filed an application for leave to appeal or appeal.
  5. [5]
    Given this is an appeal from a decision made in the Tribunal’s Minor Civil Dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.[1]
  6. [6]
    Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.[2]
  7. [7]
    The grounds upon which Mr Mepham appeals are far from clear from the material he has filed. It seems fairly clear that there are four principal issues he takes with the hearing below.

Painting of the front door

  1. [8]
    The lessors claimed $330 for the cost of repainting the front door. Mr Mepham had written on the door in marker pen. He maintained it was only whiteboard marker but the agents said the cleaners could not remove it because it was permanent marker and the door had to be repainted at a cost of $330.
  2. [9]
    Mr Mepham says he did not get around to cleaning the door but in any case it was not necessary to paint over the marks. All it needed was cleaning. He said he did not have time to clean it because he was excluded from the building. Ms Latter, the lessors’ agent, said there was security at the complex and in moving out Mr Mepham had put his things in the basement but so as to restrict access to another part of the building which in turn blocked exit routes in the event of fire. The building security had restricted Mr Mepham’s access after that.
  3. [10]
    The fixed term of his tenancy ended on 5 December 2017. Despite that Mr Mepham served a Form 13 Notice of Intention to Leave on the lessors’ agents advising he would be leaving on 12 December 2017. Evidently the lessors accepted that but Mr Mepham was not out on 12 December 2017 either. Security restricted his access to the complex after 14 December 2017.
  4. [11]
    According to Ms Latter the lessors wanted their property back to do work on it. They did not want Mr Mepham there after 12 December 2017 but he was still not moved out by then nor had he cleaned.
  5. [12]
    The learned Adjudicator accepted that the writing on the door could not simply be cleaned away and the door had to be repainted. He concluded, apparently, that the charge of $330 for the job was too much and allowed half that, $165.
  6. [13]
    The learned Adjudicator had before him an invoice for the cost of painting the front door. On the invoice there was a comment that they had tried to clean off the writing but could not do it and therefore it had to be painted over. Mr Mepham presented no independent evidence about the efficacy of cleaning as opposed to repainting and simply asserted that it could be cleaned away and also in his opinion, even if it had to be painted over, that cost would have been negligible.
  7. [14]
    The learned Adjudicator was entitled to accept the evidence of the lessors’ agent, as he did, that the writing on the door could not be simply be cleaned away and that the door required repainting. In addition to that he was entitled to rely on the invoice presented following that work being done to assist him in reaching his decision.
  8. [15]
    Put simply, in his application for leave to appeal Mr Mepham had to show that the learned Adjudicator made a mistake in his decision. He had to show that the decision was tainted by legal error or there had been a finding of fact or about credibility which was not supported on the evidence. Findings as to credit, that is assessing the relative weight of competing evidence, are seldom disturbed on appeal.[3] I see no reason why that general course should not apply here.
  9. [16]
    Mr Mepham also complained however that the learned Adjudicator had found he had been kept out of the premises by security at the complex and therefore he had had no time to clean the door. The matter was not raised directly by Mr Mepham with the Adjudicator. However, the learned Adjudicator did conclude that Mr Mepham was prevented from cleaning by his limited access through security over the weekend of 16 and 17 December 2017.
  10. [17]
    It is not clear however on what basis the learned Adjudicator concluded that because he was not allowed access over the weekend the lessors were not entitled to the costs they had to incur cleaning the unit. The term of the residential tenancy ended on 5 December 2017. Mr Mepham should have been out by then. He had a problem with his move to other premises. In consequence he gave a Form 13 Notice of Intention to Leave effective, purportedly, from 6 December 2017 to 12 December 2017.
  11. [18]
    It was really not within his power to give that notice or at least not within his power to make it effective but it appears the lessors accepted the delay, probably because they had little choice. According to Ms Latter at the hearing before the learned Adjudicator, the lessors were prepared to let him stay through to 12 December 2017 but they needed the premises back after that. He did not move out by that extended date however. The agents tried to assist him move even after that on 13, 14 and 15 December 2017, but still he was not finished. Then he caused trouble with the goods left in the common area obstructing the fire exit and his access was limited by security.
  12. [19]
    The Adjudicator concluded at hearing that Mr Mepham was holding over from 5 December 2017. In those circumstances it is not correct to say that Mr Mepham was deprived of an opportunity to clean (or here paint the door) given he should have been out and everything cleaned (or painted) by 5 December 2017 and then by agreement, so called, by the extended date of 12 December 2017.
  13. [20]
    In those circumstances, and particularly in light of Mr Mepham’s refusal to accept that the door had to be painted rather than simply cleaned, it would not be fair on the lessors to deprive them of the cost of painting incurred because Mr Mepham had still not attended to those obligations 3 days after the additional agreed extension of time to vacate of 12 December 2017.
  14. [21]
    There is no prospect of success here in an appeal for Mr Mepham with respect to the claim for the cost of painting the door.

Wall repair

  1. [22]
    The lessors also claimed $550 for the cost of repainting a wall. That was allowed by the learned Adjudicator.
  2. [23]
    Mr Mepham says this was not caused by him and he should not have been required to pay for that repair. He said the damage to the wall was caused by structural movement in the building.
  3. [24]
    Ms Latter said there were a number of walls damaged and the cost claimed was to repair the wall immediately opposite the entry, not the wall with a crack caused by structural movement, which was in the lounge. That had been fixed but that cost of repair was not claimed from Mr Mepham.
  4. [25]
    It is clear from a perusal of the transcript of the hearing before the learned Adjudicator that Mr Mepham said the structural crack was behind the lounge.[4] Ms Latter clearly identified the wall as you walk in at the entry as the one that had been damaged and the cost of repair claimed against Mr Mepham. Then the following exchange occurred:

Adjudicator Walsh: Mr Mepham, did you try and repair that…

Mr Mepham: Not as such, but I believe may be something like when furniture was getting taken out it got bumped or something like that.

Adjudicator Walsh: Okay.

Mr Mepham: That type of material pushes in a bit (indistinct).

Adjudicator Walsh: Well, it seems to me, you are liable for that.

Mr Mepham: But the cost is absurd.[5]

  1. [26]
    It seems clear that the parties and the Adjudicator understood which wall was the basis of claim and further that that was not the wall which had a defect caused by structural movement.
  2. [27]
    Similarly with the cost of repair of the door considered above, the learned Adjudicator had before him an invoice for the cost of that repair to the lessors and he noted that there was not insignificant work required to patch and paint a wall such as this, even if not a significant wall area-wise. The Adjudicator pointed out that the whole wall would have to be repainted. That was reasonable in the circumstances. It is very hard to match a patched area on a wall and it is often necessary to repaint the entire wall to obtain a reasonable finish.
  3. [28]
    Mr Mepham made comment that “they even have paint, spare paint (indistinct) it is only a wall about this wide, entrance wall",[6] but that was an entirely unsubstantiated offering without supporting evidence.
  4. [29]
    The learned Adjudicator was referred to the invoice for the cost of the work and he asked Mr Mepham if he had an alternative quote or estimate for the item and Mr Mepham admitted he did not.
  5. [30]
    The learned Adjudicator was entitled to conclude as he did. There is no reasonable complaint to be made about the finding of the learned Adjudicator.

Unspecified damages claim

  1. [31]
    Initially Mr Mepham claimed in his application only for the return of his bond. He filed a document, a submission, at the hearing which introduced an additional claim for “unspecified damages or compensation”. He claimed a rent reduction or compensation because he said his dishwasher broke down and the agent failed to fix it. He said he was without a dishwasher for more than six months.
  2. [32]
    Additionally he claimed an unspecified amount by way of rent reduction or compensation for fans in the bathroom and laundry which he said did not work. He claimed an unspecified amount by way of rent reduction or compensation for lights that were not replaced when he moved in. He claimed a further unspecified amount by way of rent reduction or compensation because, as he put it, the place was riddled with cockroaches and each month he had to continuously spray and bait.
  3. [33]
    At the hearing before the learned Adjudicator it was explained to him that he had to specify an amount he was claiming for each individual item and explain the basis for the amount claimed. He did not do that in any sensible fashion and the transcript shows the following exchange recorded:

Adjudicator Walsh: You have got to put a figure to what you are claiming for each individual item so that – and explain the basis for the figure so that your opponent can answer the claim.

Mr Mepham: I would (indistinct) they reply – given that I am – you know – being disadvantaged in not completing the cleaning, other things (indistinct) working out and things like that. This has taken a lot extra time and matters…[7]

  1. [34]
    That led the Adjudicator to state towards the end of the hearing the following:

Adjudicator Walsh: I gave the parties the opportunity to make all of their submissions earlier. Now, I would just add to what I have said that in the course of the hearing, toward the latter stage, you said that you were not proceeding with the unspecified damages claims.

Mr Mepham: Yeah, because you explained it…[8]

  1. [35]
    At the hearing of the appeal Mr Mepham maintained he only agreed not to pursue his unspecified damages or compensation claims if he got all his bond back.
  2. [36]
    I fail to discern any such statement made by Mr Mepham after reading the transcript of the proceedings. The only possible suggestion of an attempt to articulate such may be the response by Mr Mepham to the Adjudicator’s invitation to say anything more at the end of evidence and Mr Mepham responds:

I am willing to sort of bygone-bygone on where I made – saying that unspecified that was specified here on the bond.[9]

  1. [37]
    It is impossible to discover from that any sensible submission that the learned Adjudicator should have understood was an offer to forego his claim for unspecified damages or compensation if his full bond was returned.
  2. [38]
    In any case, the Adjudicator identified a significant problem with any such claims in that the claims breached the six-month rule set out in s 419 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). By that provision if either a lessor or a tenant claims there has been a breach of a term of a residential tenancy agreement then the lessor or tenant may apply to the Tribunal for an order about the breach but the application must be brought within six months after the lessor or tenant becomes aware of the breach.
  3. [39]
    Mr Mepham said in his submission filed on the day of hearing before the learned Adjudicator that he had been without a dishwasher for more than six months, and lights had not worked since he moved in and by implication the fans in the bathroom and laundry had never worked and the unit suffered from cockroach infestation throughout his stay. Mr Mepham failed to bring an application in respect of these defects alleging a breach of the obligation of the lessors to maintain premises within the requisite six months of becoming aware of the breaches. He was out of time to bring a claim for damages or unspecified compensation for any of them as at the date of hearing before the Adjudicator. This was the finding of the Adjudicator.
  4. [40]
    There was no error made here by the learned Adjudicator.

Costs

  1. [41]
    Mr Mepham was partially successful with respect to his claim for the return of the bond. He did not get all of it back but he did get more than half.
  2. [42]
    The lessors were awarded less than half of their claim. The learned Adjudicator allowed the lessors their filing fee of $116.40 in full. He made no order with respect to Mr Mepham’s costs but Mr Mepham had had payment of his filing fee waived in any case.
  3. [43]
    Mr Mepham said to the Adjudicator at the hearing that the filing fee for the counter application should have been halved. That was not accepted. The Adjudicator pointed out that the lessors had been partially successful in their counter application and they were entitled to the filing fee they paid for that. He noted Mr Mepham had not paid a filing fee.
  4. [44]
    Effectively it can be said each party were ultimately responsible to pay the other’s costs, Mr Mepham to pay the filing fee for the counter application and the lessors to pay the filing fee paid by Mr Mepham. In Mr Mepham’s case, that was nil.
  5. [45]
    The matter of costs is a matter of discretion. By s 102 of the QCAT Act the Tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party if the Tribunal considers the interests of justice require it to make the order. The effective outcome of the order cannot be said to be unjust. The learned Adjudicator was entitled to order as he did.
  6. [46]
    In respect of the costs of the appeal, by s 100 of the QCAT Act it is provided that the general rule or the usual rule is that each party to a proceeding must bear the parties own costs for the proceeding.
  7. [47]
    I see no reason why that usual rule should not apply here. There is no order as to costs of the appeal.
  8. [48]
    The application for leave to appeal should be refused.

Footnotes

[1]  QCAT Act, s 142(3)(a)(i).

[2] Pickering v McArthur [2005] QCA 294, [3].

[3] Alexandria v Thiele [2018] QCATA (unpublished as at date of this decision) citing Fox v Percy (2003) 214 CLR 118, 127.

[4]  Transcript 1 – 14 Line 38.

[5]  Transcript 1 – 17 Lines 17 – 28.

[6]  Transcript 1 – 15 Line 38.

[7]  Transcript 1 – 17 Lines 31 – 37.

[8]  Transcript 1 – 28 Line 44 – Transcript 1 – 29 Line 1.

[9]  Transcript 1 – 25 lines 44 – 45.

Close

Editorial Notes

  • Published Case Name:

    Derek John Amoore Mepham v David Wenham and Judith Wenham

  • Shortened Case Name:

    Mepham v Wenham

  • MNC:

    [2018] QCATA 188

  • Court:

    QCATA

  • Judge(s):

    Member Howe

  • Date:

    03 Dec 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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