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Lai v Robina Realty Pty Ltd[2019] QCATA 37

Lai v Robina Realty Pty Ltd[2019] QCATA 37

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Lai v Robina Realty Pty Ltd & Anor [2019] QCATA 37

PARTIES:

CHUN MING LAI

(applicant)

v

ROBINA REALTY PTY and CATHRYN MOONEY

(respondents)

APPLICATION NO:

APL306-18

ORIGINATING APPLICATION NO/S:

MCDT1219/18 (Southport)

MATTER TYPE:

Appeals

DELIVERED ON:

29 March 2019

HEARING DATE:

25 March 2019

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes, Member

ORDERS:

  1. The application for leave to appeal is dismissed.
  2. No order as to costs.

CATCHWORDS:

RESIDENTIAL TENANCY DISPUTE – where question of fair wear and  tear – whether premises vacated (fair wear and tear excepted) in original condition – claims by lessor for compensation – whether award for one head of claim (gardening) was lawfully made – no appellable error shown – application for leave to appeal dismissed

Acts Interpretation Act 1954 (Qld), s 48A

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 83

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 66

Amos v Andrews [2014] QCAT 147

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

Filios v Morland (1963) 63 SR (NSW) 331

Fox v Percy (2003) 214 CLR 118

Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611

Pannell v Gun Court Pty Ltd [2012] QCAT 558

Robinson v Corr [2011] QCATA 302

Sali v SPC Limited (1993) 67 ALJR 841

Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 101

Snell v Morgan [2011] QCATA 316

Thompson and Anor v Jedanhay Pty Ltd [2012] QCATA 246

W (an infant), In  re [1971] AC 682

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

  1. [1]
    Between the years 2011 and 2018[1] Chun Ming Lai ('the Appellant’) leased residential premises at Clear Island Waters, on the Gold Coast. At all material times the owner of the premises was Cathryn Mooney ('the Owner’). Robina Realty Pty Ltd (`Robina’) was her managing agent.
  2. [2]
    The Appellant vacated the premises on or about 21 March 2018.[2] Subsequently the Landlady and Robina instituted this minor civil dispute against the Appellant, claiming a total of $2,241.76 for failing to maintain the property as at the time of entry, fair wear and tear excepted,[3] and other items.[4] In view of the fact that the Owner herself appears on the record, the presence of Robina as a party seems otiose[5], but that question need not detain us.
  3. [3]
    Of the eight original heads of claim, we are now concerned with only one, namely $638 for tidying of the garden and external cleaning. The tribunal allowed that claim, after reducing the amount to $510. The Appellant now challenges that award. In other words – costs claims aside – the contest is now confined to $510, for which the Appellant denies liability.
  4. [4]
    The Appellant’s grounds of appeal may be summarised as follows:
    1. (a)
      Material evidence for the defence (i.e. the present Appellant) was not duly considered;
    2. (b)
      There was no, or no sufficient evidence that the cost of the subject gardening work was actually paid by or on behalf of the Owner;
    3. (c)
      In the absence of a proper exit condition report issued by or on behalf of the Owner, her claim for gardening expenses is incompetent and/or out of time.
  5. [5]
    Notably, the Appellant does not rely on ground '(c)’ above[6] to challenge five other heads of claim for which compensation or reimbursement was awarded.

The Gardening

  1. [6]
    This is question of fact. There is evidence upon which the adjudicator was entitled to find as she did. The witness Britten stated on oath:

The gardening wasn’t attended to. ... [On] previous inspections, the gardening was done, so it was just this last perhaps [sic] six months where [the Appellant] let it go.[7]

  1. [7]
    That evidence is supported by photographs tendered on behalf of the owner. Britten testified that they were taken at the time of the Appellant’s departure, 22 March 2018.[8] There is no evidence to the contrary. The Appellant complained that these pictures were not dated[9], but, as the adjudicator pointed out, the same comment applies to competing images adduced by the Appellant.[10] The adjudicator accepted the Owner’s photographs as an accurate representation of the garden as at March 2018, and the Appellant’s as depicting the garden at the beginning of the tenancy.[11] Observing that a photograph of the Appellant’s wife 'doing some trimming and cleaning’ showed only 'a small portion of the garden’, the adjudicator discounted the Owner’s claim of $638 by 20%, thereby reducing the award for this item to $510.[12]
  2. [8]
    The appellant submits that there is no evidence that the Owner actually paid the costs of gardening. The Owner adduced a quotation of Peter Crichton Landscaping dated 12 April 2018, twice referred to by the adjudicator at the hearing.[13] Tendering that document, the Owner’s representative observed: 'I was just proving that the owners did pay for things as well’. While the Appellant denied (and denies) liability for the gardening expenses, it appears that, at the trial, it was the common understanding of the parties and the tribunal that the quotation was accepted and, in due course, was paid. That is implicit in the reasons for judgment.[14]The point of non-payment is an afterthought in the Appellant’s written submissions.[15] It was not raised at the trial. It is therefore unnecessary to consider the admissibility of the Owner’s written response, as follows:

In a tax invoice statement for the period 1 June 2018 to 16 June 2018 (enclosed) an entry appears as follows: '15 June, 238505, 123 port Peter Breighton [sic] landscaping $638.00’.[16]

  1. [9]
    Another complaint not aired at the trial is that the Owner’s outlays for gardening include cleaning of 'the outside of the tenanted premises'.[17] This submission is quite misconceived. The reasons for decision clearly indicate that the 'pressure cleaning' charge related, not to the house, but to garden pathways.[18]
  2. [10]
    The proposed grounds of appeal summarised in subparagraphs 4 (a) and (b) above are without substance.

Informal Exit Report and Validity of Claim

  1. [11]
    The Appellant submits that the absence of a proper Exit Condition Report renders the Owner’s action incompetent and out of time.
  2. [12]
    Section 66 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ('the RTA’) relevantly provides that, at the end of a tenancy, a tenant must prepare an exit report and give a copy to the lessor’s agent. If the lessor disagrees with the report, the lessor must, within 3 days of service, specify the points of disagreement.
  3. [13]
    On 22 March 2018 the Owner’s agent sent an email to the Appellant, listing some 39 points of dissatisfaction, including 'gardens need weeding and trimming'. The adjudicator treated this document as sufficient compliance with section 66, observing that there is generally no magic in a slavish observance of forms.[19]
  4. [14]
    However, the answer to the present objection is that section 66 of the RTA is an enabling, not a disqualifying provision. It is designed to ease and expedite the proof of claims, but proof by other means is permissible. Further, it does not impose an arbitrary time limit for the making of claims. In Thompson v Collinson, a recent decision of the appeals division of QCAT, appears the following passage, with which I respectfully agree:

The tribunal did not allude to an issue about the lessor’s claim being out of time by virtue of s 66(2) of the RTRAA in its reasons for decision. The matter was raised at hearing by [the lessee]. Section 66(2) stipulates that a lessor or agent must sign a copy of an exit condition report prepared by the tenant within 3 days after receiving the report. [But] there is no stipulated sanction for breach of that provision and there is no limitation placed upon a lessor’s entitlement to claim compensation or damages from a tenant in respect of damaged property discovered more than 3 days after receipt of an exit condition report.[20]

  1. [15]
    There is no error of law in the learned adjudicator’s adoption of that approach[21] She was satisfied on the balance of probabilities, and on the material available, that the disputed claim was satisfactorily made out. The case of Amos v Andrews,[22] on which the Appellant relies, establishes no rule of law to the contrary. In Amos there was no Lessor’s notice of dissatisfaction, and no exit report, formal or informal was issued.[23] Furthermore, the lessor was unable, by any other form of proof, to establish the claim.[24] Questions of incompetence or time limits did not arise. Amos is simply a decision on its own facts.[25] It was implicit in that case that if other evidence had been available, it could have been adduced, section 66 notwithstanding.
  2. [16]
    Accordingly I reject the contention that the present Owner’s claim is incompetent or out of time.

Costs

  1. [17]
    The Appellant, if successful, seeks an order that the Owner pay the costs of filing this application. The only costs recoverable in a minor civil dispute other than a minor debt claim are the filing fees paid on the primary application.[26] In view of the result in this instance, is unnecessary to define the costs recoverable if an application to appeal in such a case succeeds.
  2. [18]
    The owner makes no application for costs. If such an application had been made it may have been meritorious, but that question does not arise.
  3. [19]
    There will be no order as to costs.

Communication per Interpreter

  1. [20]
    The Appellant, a resident of Australia for at least 20 years,[27] required the services of an interpreter. The interposition of an interpreter may offer a witness more time to consider responses, and retard cross-examination.[28] However, at many points during the hearing, the Appellant, speaking in English, and bypassing the interpreter, answered questions, interjected, and otherwise showed that he was following the proceedings.[29] The Appellant also filed two lengthy written submissions. It is clear that he had ample opportunities to present his case. Indeed, the High Court might now regard them as more than ample.[30]

The Nature and Limitations of an Application for Leave

  1. [21]
    Finality in litigation is highly desirable because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.[31] The legislative purpose of a leave-to-appeal provision is to ensure that the primary decision will normally be final. Before an appeal will be entertained, the appellant must demonstrate an arguable case of error. “Error” means an error of law, or a finding of fact that is not merely debatable, but rationally indefensible (which is also an error of law). Exceptionally, leave may be granted to examine a question of public importance, but few minor civil disputes answer that description.
  2. [22]
    An application for leave to appeal is not an opportunity to re-run the trial. It is not an occasion to repeat and reargue evidence that was reasonably rejected by the first decision-maker, or to present material that could have been put before him, but was not.[32] Certainly it is not nearly enough for an applicant to express disappointment, or to entertain a subjective feeling that justice has not been done.[33] It is not an appellable error to prefer one version of the facts to another, or to give less weight to one party’s case than he or she thinks it deserves. Findings of fact will not be disturbed if they have rational support in the evidence, even if another reasonable view is available.[34] Where reasonable minds may differ, a decision is not legally erroneous simply because one conclusion has been preferred to another possible view.[35]
  3. [23]
    There is no point of appellable error with any reasonable prospects of success. The application for leave must be dismissed.

ORDERS

  1. [24]
    The application for leave to appeal is dismissed.
  2. [25]
    No order as to costs.

Footnotes

[1]  Transcript of hearing 13 November 2018 (Transcript’) page 9 lines 21 ff.

[2]  Transcript page 9 lines 35-38.

[3]  See General Tenancy Agreement dated 29 September 2017, special term 2.

[4]  For example, unpaid water charges.

[5]  Note, however, that absent any contrary provision, clause 43(2) of the lease entitles the agent to 'stand in the lessor’s place in any application to a tribunal’.

[6]  Concerning the allegedly missing or defective exit report.

[7]  Transcript page 16 lines 1-5; email Robina to Appellant 22 March 2018, page 1.

[8]  Transcript page 28 line 39, page 29 line 5.

[9]  Transcript page32 line 12.

[10]  Transcript page 42 line 43.

[11]  Transcript page 43 lines 44-45.

[12]  Transcript page 44 lines 26-27.

[13]  Transcript page 28 line 11, page 43 line 34.

[14]  Transcript page 44 lines 24-27.

[15]  Submissions of the Appellant dated 18 November 2018, page 2 `Mistakes of Law’ Item 1.

[16]  Submissions of the Owner filed 17 December 2018 page 2 paragraph 8.

[17]  Submissions of the Appellant dated 18 November 2018, page 2, first item 2.

[18]  Transcript page 44 line 20.

[19]  'If a form is prescribed or approved under an Act, strict compliance with the form is not necessary and substantial compliance is sufficient': Acts Interpretation Act 1954 (Qld) s 48A.

[20]  [2017] QCATA 123 at [11].

[21]  See e.g. Transcript page 17 at lines 12ff.

[22]  [2014] QCAT 147.

[23]  [2014] QCAT 147 at [10].

[24]  [2014] QCAT 147 at [13].

[25]  The same comment applies to another case cited by the Appellant, namely Pannell v Gun Court Pty Ltd [2012] QCAT 558. As the tribunal noted there, at [20]: 'The post tenancy compensation sought by the owner’s agent has not been sufficiently proved to warrant any payment’.

[26]  QCAT Rules 2009 r 83.

[27]  Transcript page 40 line 7.

[28]Filios v Morland (1963) 63 SR (NSW) 331 at 332-333.

[29]    See for examples Transcript page 9 lines 21, 29 and 33; page 17 line 22, page 21 lines 32 and 36; page 31 lines 10ff; page 32 lines 43ff; page 33 lines 8 and 12ff; page 34 line 5; page 40 line 40.

[30]  '[T]he time of the court is a publicly funded resource. Inefficiencies in the use of that resource …are to be taken into account’: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at [4]-[5]. It is proper to consider 'the claims of other litigants and the public interest in achieving the most efficient use of court resources’: Sali v SPC Limited (1993) 67 ALJR 841 at 843-844.

[31]Fox v Percy (2003) 214 CLR 118 at 128.

[32]Snell v Morgan [2011] QCATA 316 at [10]; Thompson and Anor v Jedanhay Pty Ltd [2012] QCATA 246 at [28].

[33]Robinson v Corr [2011] QCATA 302 at [7]; Thompson & Anor v Jedanhay Pty Ltd [2012] QCATA 246 at [6].

[34]Fox v Percy (2003) 214 CLR 118 at 125-126.

[35] Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at [131]; In Re W (an infant) [1971] AC 682 at 700; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151.

Close

Editorial Notes

  • Published Case Name:

    Chun Ming Lai v Robina Realty Pty Ltd and Cathryn Mooney

  • Shortened Case Name:

    Lai v Robina Realty Pty Ltd

  • MNC:

    [2019] QCATA 37

  • Court:

    QCATA

  • Judge(s):

    Member Forbes

  • Date:

    29 Mar 2019

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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