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Day v O'Sullivan[2019] QCATA 43



Day & Anor v O'Sullivan & Anor [2019] QCATA 43














8 April 2019


On the papers




Member King-Scott


Leave to appeal refused. Appeal dismissed.


APPEAL – general principles – right of appeal – LEAVE TO APPEAL – mixed fact and law

LANDLORD AND TENANT – liability for water usage

Queensland Civil and Administrative Tribunal Act 2009 (Qld).

Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39

Dearman v Dearman (1908) 7 CLR 549

Fox v Percy (2003) 214 CLR 118

Kokoda Spirit Pty Ltd v Harris [2011] QCATA 154







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


  1. [1]
    This is an application for leave to appeal the decision of an Adjudicator sitting at Holland Park.  The claim before the Adjudicator was for water charges incurred at a residential property occupied by the Applicants as tenants. The Respondents are the landlords of the property situated at 55 Green Street, Yeerongpilly. In issue before the Adjudicator was who was liable to pay water charges, levied by Urban Utilities, which for a period, were unusually high.
  2. [2]
    An appeal in minor civil disputes can only be brought with the leave of the Appeal Tribunal.
  3. [3]
    Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant will obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?[1]

Evidence and Findings

  1. [4]
    Urban Utilities levied charges for water for the period 10 November 2017 to 15 February 2018[2] of $3,092.18 for water services. That amounted to 737 kilolitres or usage of 7,598 litres per day.
  2. [5]
    The Applicants denied that they were liable to pay the said sum as they maintained it resulted from a leak in the swimming pool, the water level of which, from time to time, they were required to top up. They did not report the alleged leak to the Respondents but rather to the pool service company that regularly attended the site and maintained the pool. It was in issue before the Adjudicator whether there was a leak. The filter was found to have a minor leak which was repaired, it was not sufficient to explain the substantial usage over the period. An alternative explanation was that the Applicants left hoses running which was observed by some of the pool service men.
  3. [6]
    The liability to pay water charges is found in Clause 17 of the General Tenancy Agreement executed by the parties. The period of tenancy in the agreement was from 18 August 2017 to 1 January 2019.
  4. [7]
    The Applicants engaged Poolwerx to maintain the pool and Poolworx were their agents.[3]
  5. [8]
    The water usage for the period was substantially above previous and subsequent readings. However, there was no other explanation for the high reading other than the two versions I have referred to.
  6. [9]
    The Adjudicator found that the Applicants were liable for the water usage and ordered them to pay the said sum to the Respondents.

Grounds of appeal

  1. [10]
    The Applicant alleges that irrespective of whether they breached the rental agreement the Respondents would have still suffered loss.  They say the breach arose from a failure to advise the landlord's letting agent of the problem with pool level dropping.  They advised the pool contractor Poolwerx but not the Respondent’s agent. 
  2. [11]
    Their argument proceeds on the basis that a party may not recover damages to place them in a better position than they would have been, had the contract been performed correctly.
  3. [12]
    If the Applicants had informed the agent of the problem with the poor level dropping (as distinct from informing Poolwerx), the agent for the landlord would have told Poolwerx as the Applicants did, as early as 23 September 2017, and the same set of events, thereafter, would have unfolded.  They say it would have made no material difference to the way Poolwerx managed the pool from that date up to mid-December 2017.

The Respondent’s submissions

  1. [13]
    The respondents say that the Applicants’ argument based on the judgement sum being an award of damages for breach of contract is misconceived.  They say the order was not based on any breach of contract or any loss arising from that breach.  The judgement sum is not compensatory or punitive damages but rather monies due under a lease agreement to pay water charges.

The Adjudicator’s decision

  1. [14]
    The applicant Mr Day said he had the hose in the pool for days running constantly, allegedly because the pool was leaking.[4] He said the water never went over the top and was leaking from some other point.[5] There was speculation by the Adjudicator as to how that occurred but in the absence of expert evidence that was not a matter that the Adjudicator could determine.[6] In fact, he made no determination as to the cause of the leak. In an exchange with the Adjudicator, Mr Day conceded the water had to come from the hose.[7] There was other evidence from the Poolwerx employees that a hose ran constantly into a dogs water bowl and other incidents where the hose was found to be running.[8]
  2. [15]
    The Applicants did not dispute that they failed to advise the Respondents of the suspected pool leak but rather advised the pool contractors.[9]
  3. [16]
    The Adjudicator found that the water usage was due to the Applicants leaving the hose on all night. He found that there was no reason why the Applicants should not pay the water charges.[10]

Disposal of the Appeal

  1. [17]
    Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[11] As was stated by the Tribunal in Bradlyn Nominees Pty Ltd v Saikovski[12] the appeal process is not an opportunity for a party to again present their case. It is the means for correcting error made by the Tribunal which decided the proceeding.
  2. [18]
    It is tolerably clear that there was evidence on which the Adjudicator could make his decision. There is no demonstrable error in the Adjudicator’s findings. The Application for leave to appeal is dismissed.


[1]Kokoda Spirit Pty Ltd v Harris [2011] QCATA 154 [7].

[2]  These dates represent metre readings on those days.

[3]  Transcript 1-25 line 40

[4]  Transcript 1-10 line 25

[5]  Transcript 1-10 lines 35 - 45

[6]  Transcript 1-11 line 35

[7]  Transcript 1-18 line 42

[8]  Transcript 1-28 line 45

[9]  Transcript 1-15 lines 12 - 18

[10]  Transcript 1-34 line 20

[11]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.

[12]  [2012] QCATA 39


Editorial Notes

  • Published Case Name:

    Harry Day and Karen Anderson v Angela O'Sullivan and Frances O'Sullivan

  • Shortened Case Name:

    Day v O'Sullivan

  • MNC:

    [2019] QCATA 43

  • Court:


  • Judge(s):

    Member King-Scott

  • Date:

    08 Apr 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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