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The Madhoji Family Trust T/A A & K Madhoji Pty Ltd v Stephen Paul Brown QCATA 30
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Madhoji Family Trust v Brown  QCATA 30
The Madhoji Family Trust t/as A & K Madhoji Pty Ltd
Stephen Paul Brown
ORIGINATING APPLICATION NO/S:
26 February 2019
On the papers
Member Richard Oliver
Leave to Appeal is Refused.
LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – OBLIGATIONS, PROHIBITED MATTERS AND PROTECTION FOR LESSEES – RENTAL BONDS OR SECURITY DEPOSITS – where tenant sought recovery of the bond – where appellant alleged tenant failed to maintain the lawn in the back yard – where area shaded by large tree – extent of tenants responsibility for maintenance
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 43(3)(a)(i)
Terera & Anor v Clifford  QCA 181
Robinson Helicopter Company Inc v McDermott  HCA 22
Fox v Percy (2002) 214 CLR 118
REASONS FOR DECISION
- The appellant is the owner of residential premises at 1A/58 Oxford Street, Bulimba. The appellant is represented by Mr Madhoji.
- On or about the 10th of September 2015 the respondent, Mr Brown and the appellant entered into a written residential tenancy agreement in respect of the Oxford St property. The essential terms of the residential tenancy agreement were that:
- (a)The tenancy was to commence on the 1st of October 2015 and end on the 30th September 2017;
- (b)The rent payable was $3,758.63 per month; and
- (c)The rental bond was $3,460;
- The agreement was varied slightly after Mr Brown took up residence in the premises whereby he agreed pay an additional $15/wk for external gardening services to be arranged by the appellant. As it turned out gardening services were carried out only a couple of times during the period Mr Brown was paying for this service.
- The appellant wanted to sell the premises prior to the expiration of the tenancy and on 31 October 2017 gave notice of intention to sell (RTA Form 10) to Mr Brown. However, an oral agreement was reached between the appellant, through Mr Madhoji, and Mr Brown that he would continue to reside in the premises, effectively on a week to week basis, at a reduced rent until the property was sold. This enabled the appellant to market the property but still receive rent and Mr Brown would vacate if and when the property was sold without the need for the requisite two-month notice.
- However, due to the considerable inconvenience to Mr Brown to having his personal effects put into the garage on ‘open for inspection’ days and the need to vacate the property with young children on Saturdays, he decided to move out on the 4th January 2018.
- He applied for a return of the bond from the Residential Tenancy Authority but the appellant claimed the bond monies for the costs to reinstate the premises to the same condition as it was when Mr Brown took up residency. There is an entry report in the papers, and also an interim inspection report which shows no complaint as to the condition of the premises. Indeed, at the expiration of the tenancy there was not complaint as to the internal state of the premises.
- The issue before the Justices was whether Mr Brown was entitled to the return of the bond.
- The point of contention between the parties was the condition of the back yard at the conclusion of the tenancy. The back yard is not very big, about 15 metres in depth from the house, and there is a large Poinciana tree growing in the corner of the yard with a canopy covering a substantial part of the yard. It had been pruned back at the start of the tenancy but the evidence shows that they do grow prolifically and between November and March during which it flowers. It is deciduous and with the fallen leaf litter and flowers, the lawn struggles to survive. Mr Brown gave evidence that in the time he was there it grew to the point where it was virtually touching the house. The effect of this was that it shaded the back yard and reduced the sunlight to the point where the grass stopped growing. This was compounded by the shade to the back yard by trees growing on the neighbour’s boundary. The back yard and associated landscaping were clearly not in the same condition as when the tenancy was taken up. The appellant sought to retain the bond to reinstate the back yard.
- There was really no contention about the condition of the interior of the house although there were complaints by the appellant about stains on the driveway and maintenance of the gardens. But essentially, this was a dispute about the condition of the back yard.
- When the bond was not released, and after the RTA issued a Notice of Unresolved Dispute Mr Brown commenced a proceeding in the Tribunal under the Minor Civil Disputes jurisdiction. A hearing was conducted before two Justices of the Peace on the 18th July 2018. Mr Madhoji appeared for the appellant and Mr Brown appeared in person. Both parties gave evidence and put forward submissions supporting their respective positions. After hearing the parties, the tribunal adjourned to consider the matter, resumed, gave reasons and made an order that the bond be paid out to Mr Brown.
- It is from that decision that the appellant has filed the application for leave to appeal or appeal. The application itself does not specify or identify any “grounds” for appeal specifically identifying how the Justices erred on the facts or the law. The application is accompanied by a lengthy submission which really just reiterates the case but before the Justices in the original hearing. This of course is not unusual for litigants in person and it is left to the appeal tribunal to then disentangle the submission to identify any basis upon which leave to appeal should be granted.
- Having done that what emerges is that the appellant, in effect, seeks to re-litigate the matter afresh before the appeal tribunal.
Applicable Principles for Leave to Appeal
- An appeal from a decision in the minor civil disputes jurisdiction of the tribunal is not as of right. Section 142(3)(a)(i) of the QCAT Act provides that an appeal against a decision in respect of minor civil dispute can only be made ‘if the party has obtained the appeal tribunal’s leave to appeal’.
- For the appeal tribunal to give leave to appeal, the appellant must identify some error on the part of the original tribunal as constituted. The issues raised on the question of whether to grant leave to appeal have been summarised in the recent case of Terera & Anor v Clifford, they are whether:5
- (a)an appeal is necessary to correct a substantial injustice;
- (b)there is a reasonable argument that there is an error to be corrected; and
- (c)on the question of whether leave to appeal might be given the court usually makes some preliminary assessment of the prospects of the proposed appeal. As was said in Queensland Building & Construction Commission v Meredith, there dealing with an appeal from the appellate tribunal of QCAT:
Section 150(3) of the QCAT Act permits an appeal to this Court against a final decision of the Appeal Tribunal only on a question of law and only if the party who wishes to appeal has obtained leave to appeal from this Court. The very structure of this provision forcefully implies, first, that leave to appeal may be given only with respect to a question of questions of law and, secondly, that in considering the exercise of the discretion to grant leave to appeal, this Court will have high regard for the prospects of success that the applicant for leave has of demonstrating error on the part of the Appeal Tribunal with respect to the question or questions of law concerned. There must be reasonable prospects of success to warrant a grant of leave.
- There is one other consideration, the application for leave to appeal or appeal is not a rehearing of the matter that was before the primary decision maker/s. In other words a rehearing on the merits. The appellant or Mr Madhoji must identify some error of law or alternatively some substantial injustice, generally on the basis that the conclusion of the tribunal at first instance was simply not open on the evidence before it.
- Clearly there is no error of law. The Justices were confronted with differing versions of fact as to the circumstance and reasons for the deterioration of the back lawn. They found as a matter of fact that they preferred to evidence of Mr Brown as opposed to that of Mr Madhoji, as they were entitled to do on the evidence before them. They found, again as a matter of fact, that ‘the tenant (Mr Brown) has fulfilled his obligations under the lease in relation to the garden’.
- There have been clear and unequivocal statements by the High Court as to how an appeal tribunal/court must not interfere with findings of fact unless they are demonstrated to be wrong by ‘incontrovertible facts or testimony’ or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’. That is not the case here.
- Therefore, there is no basis for interfering with the Justices findings of fact.
- In any event, the appellant had failed to prove to the satisfaction of the Justices, and in the submissions before the appeal tribunal, the loss incurred in reinstating the lawn in back yard and the cost of other works, such as driveway cleaning, to the requisite standard. The appellant sought to rely on the cost of the landscaping work before
Mr Brown took up occupation and to draw some inference from that costs to prove the damages for Mr Brown’s failure to maintain the premises to justify the retention of the bond. Even if there was a contrary conclusion on the facts, the appellant, as found by the Justices, has failed to prove any monetary loss.
- The effect of this is that even if there was a grant of leave, the appeal has little prospects of success. Therefore, leave to appeal is refused.
- Published Case Name:
The Madhoji Family Trust T/A A & K Madhoji Pty Ltd v Stephen Paul Brown
- Shortened Case Name:
The Madhoji Family Trust T/A A & K Madhoji Pty Ltd v Stephen Paul Brown
 QCATA 30
Member Richard Oliver
26 Feb 2019