Leonard v Hugh Reilly Real Estate (No 2)
[2021] QCATA 104
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- Unreported Judgment
- Leonard v Hugh Reilly Real Estate (No 2)[2021] QCATA 104
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Leonard v Hugh Reilly Real Estate (No 2)[2021] QCATA 104
Leonard v Hugh Reilly Real Estate (No 2)[2021] QCATA 104
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Leonard v Hugh Reilly Real Estate (No 2) [2021] QCATA 104 |
PARTIES: | LEONIE LEONARD (applicant/appellant) v HUGH REILLY REAL ESTATE (respondent) |
APPLICATION NO/S: | APL016-20 |
ORIGINATING APPLICATION NO/S: | MCDT271/19 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 2 September 2021 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judge Allen QC, Deputy President |
ORDERS: | Leave to appeal is refused. |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – OTHER CASES – appeal from a Magistrate constituting the Tribunal to hear and determine a minor civil dispute – where applicant was a tenant pursuant to a residential tenancy agreement – where applicant claimed compensation for removalist costs, rent abatement, the cost of an engineering report and replacement of furniture damaged by black mould – where some components of claim were agreed by parties at hearing and ordered to be paid by the respondent to the applicant – where balance of claim refused – where applicant filed application for leave to appeal or appeal that decision – where leave to appeal is required – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 142(3)(a)(i) Burke v Commissioner of Police [2019] QCA 158 Burlington Realty Pty Ltd t/as Belle Property Paddington v McComb [2016] QCATA 110 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39 Crinis v Ray White Paradise Group [2016] QCATA 90 Durrand v Karaolis [2012] QCATA 182 Ebner v Official Trustee in Bankruptcy (2000) 201 CLR 337 Galagher v O'Donnell [2020] QCATA 4 Goldfield Projects Pty Ltd v Queensland Building and Construction Commission [2020] QCATA 21 Leonard v Hugh Reilly Real Estate [2020] QCATA 24 Pickering v McArthur [2005] QCA 294 |
REPRESENTATION: | |
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
Background
- [1]The proceedings before the Tribunal related to a dispute between the parties to a residential tenancy agreement. I have considered the material that was before the Tribunal detailing the six year history of the tenancy, including the details of prior disputes between lessors and lessee, but do not need to recount such matters for the purpose of my decision. By the time of the hearing in the Tribunal on 20 December 2019, the tenancy had terminated and the applicant had vacated the property
Minor Civil Dispute proceedings
- [2]By the time of the hearing in the Tribunal on 20 December 2019, the applicant tenant sought, pursuant to an ‘Application for minor civil dispute – residential tenancy dispute’ filed 26 August 2019 and amended on 5 November 2019, the sum of $24,789.21 to be paid by the respondent agents for the lessors.
- [3]The applicant sought the following order:
Order about failure to comply with maintenance obligations 1. Compensation for unexpected relocation. 2. Compensation for cost of mould test. 3. Compensation for replacement of furnishings. 4. Rent abatement for 4 years paying full rent while garage roof was deemed dangerous and the garage door could not be locked or trusted to stay closed. 5. Rent abatement for the 5 weeks the ensuite was unusable.
- [4]The monetary claim was particularised as follows:
Claim 1 - Removalist - $972.50
Claim 2 - Mould testing - $1597.14
Claim 3 - Replacement mattresses - $1997.00
Claim 4 – Replacement bedding - $926.45
Claim 5 – Mattress to be replaced - $4354.00
Claim 6 – Soft Furnishing to be replaced - $3028.12
Claim 7 – Lounge to be replaced - $1799.00
Claim 8 – Rental Abatements – for unusable garage ($9765.00) and unusable ensuite ($350.00)
- [5]The applicant contended in the amended application that:
I am seeking financial compensation for the unforeseen expenses I have incurred and am yet to incur due to the untimely conduct towards maintenance issues within the home by the lessor and agent. The lessor and agent would not conduct testing for atmospheric mould issues. Therefore I had no choice but to pay for this myself as I could not take the chance of contaminating our new home. The report confirmed elevated levels of airborne mould and the most efficient remediation of my soft furnishings was by way of replacement. Mattresses and soft furnishings were removed and destroyed with replacement values noted in this application. As a tenant I paid full rent for the home specifically due to the 2 X double garages with the intention of using the second garage for training purposes. But from 2013 to 2017 this was not possible due to the danger of the sagging roof and inability to lock or even at times open or close the garage door. Also as a tenant we had been paying full rent for a home with an ensuite and yet due to lack of timely attention by the landlord and agent to my request to issues with the ensuite we were instructed to not use the ensuite for 5 weeks and did not receive a rent abatement.
- [6]The application was heard and determined by a Magistrate constituting the Tribunal on 20 December 2019. During the course of the hearing, the parties agreed that the Tribunal should allow the applicant’s claim for removalist’s costs in the sum of $972.50 and rent abatement regarding the ensuite in the sum of $250.
- [7]With respect to the claim for rent abatement regarding the use of a garage, the applicant gave evidence that she was unable to use the garage from the time of her entry into the premises in 2013 until repairs were carried out in 2017. She claimed that during that period the garage was unusable because its door had fallen off its rollers. Although the applicant claimed to have brought this issue to the attention of the respondent soon after the commencement of the tenancy, she could produce no documentary evidence of that. No such defect was noted on the entry condition report. She had not issued any notices to remedy breach in respect of such issue and had entered into successive tenancy agreements in 2014, 2015, 2016 and 2017 without any claim for reduction of rent regarding such issue.
- [8]The respondent’s evidence was that the first notice the respondent had from the applicant as to an issue with the garage door was in late August 2017. Subsequent building inspection revealed sagging roof trusses following water damage after a cyclone and the door was made safe within weeks of the applicant’s report before subsequent building work including replacement of roof trusses and garage door repair. The applicant had not claimed for a rent reduction until the dispute arose following on termination of the tenancy in 2019.
- [9]The learned Magistrate did not allow the applicant’s claim for rent abatement regarding the garage. The learned Magistrate stated as follows:
A number of things occurred from 2013 to 2017 which cause me grave concern about the applicant’s claim in this regard. The first is that she signed five new leases during that period of time. One in 2014, one in 2015, one in 2016 and one in 2017. This was despite her saying that the roller door of the garage was broken, and she was not able to use the garage. The other thing that causes be great concern about that claim is that at no time was a form 11 issued during that period of time to remedy the breach. If the breach had not been rectified in the requisite timeframe then, if it was sufficiently a problem for the applicant, she could have moved out of the property after giving the requisite seven days for notice for an unremedied breach. That did not occur. It seems that the issue regarding the garage has only arisen in recent times once the relationship has broken down and I refuse to order anything in respect of rent reduction for the garage.[1]
- [10]The balance of the applicant’s claim was based on her contention that the residential premises were infected with black mould and that the respondent’s failure to address her concerns regarding same required her to pay for an engineering report investigating the presence of mould and rendered worthless her home furnishings, thus requiring their replacement. The difficulty for the applicant was the absence of justification for her expenditure on the report and the absence of evidence for the rest of the claim.
- [11]The learned Magistrate stated as follows:
The next issue is the reimbursement of a mould test. That is a mould test that was performed by FIELD Engineers. The value of the mould test was $1597.14. It was incurred on the 19th of September 2019. I’m told that it was actually the respondent who sought the quote from FIELD Engineers, but it was in fact the applicant that decided to go ahead with it. She says that she was told that the respondent was not going to go ahead with the mould testing. The respondent says that it would’ve gone ahead with the mould testing, but after the applicant had moved out of the home. By this stage, she had been given a notice to leave the property, that is a notice to vacate on the 21st of August 2019.
The invoice related to a report received by her after an inspection was done by David Corbett of FIELD Engineers. The report is dated the 26th of September 2019. The mould issue had been a problem for some time. The applicant says, however – again I note that it wasn’t until July 2019 that a form 11 notice to remedy breach was issued to the respondent. When the breach wasn’t remedied, the applicant didn’t take any further action and continued to live in the home, and she continued to live in the home until … the 20th of September 2019. In my view, that was a voluntary act by the applicant to engage FIELD Engineers to carry out that inspection. It was not her home. She was a tenant. After she’d issued the notice to remedy breach and it was unremedied, she had the remedy of moving out of the home. Indeed, by that point she had already been told that she could move out of the home without consequence by the respondent – I accept that evidence of the respondent – and she didn’t. The fact she went ahead and voluntarily engaged FIELD Engineers and paid their account, in my view, means that cannot now be [indistinct] to the respondent. I refuse that claim.
The next issue is the disposal of soft furnishings. The evidence that the applicant relies upon is the report of Mould Stoppers dated the 3rd of May 2019, and the report of David Corbett from FIELD Engineers which also annexed to it a reference guide for professional mould remediation. It’s common ground that there was mould in the home in the bathroom. The respondent says mould everywhere else was never seen and, in fact, it was complained of but, on a routine inspection, the applicant said she’d wiped it off, suggesting that whatever it was was not particular (sic) significant. There was mould in the property.
What I find particularly concerning about this case is that the mould was known for a very long time prior to the form 12 issuing giving urgent notice – that is, immediate notice to leave the property, although, in reality, Ms Leonard was not expected to move from the property immediately. Ms Leonard has referred to a health concern that she had. That makes me even more concerned about why she did not exercise her right after the breach was not remedied to move out of the property. The other matter is that she could have been moved to another property without incident. In terms of her soft furnishings, I’m not satisfied on the evidence of Mould Stoppers or the report of FIELD Engineers that she needed to throw away her property. The onus is on her to prove that that was required.
There is no testing that has been done and brought before this court that there was anything wrong with the property. There is no evidence provided that she had received quotes that were unacceptable vis-à-vis the value of the property to throw it away so that remedial action, which is referred to in the attachment to David Corbett’s report – that is that items can be cleaned – there’s no evidence that that was cost-prohibitive. There is no evidence that she – if she was relying on this document – disposed of the items in the way that was recommended and, in fact, there’s no evidence at all, apart from her oral testimony, that she disposed of the items.
The claim that she makes is not supported on the evidence and I do not allow any compensation for furnishings that were thrown away. That was, in my view, a decision for her entirely, it would seem, based on her own personal concerns about mould but not based on any objective evidence that has been brought before this court that those items needed to be thrown away. With respect to compensation for having to leave the property, the mould issue was apparent for a very long time. The power lay in her hands after the breach was not remedied to move out of the property in seven days. She said that didn’t suit her, but if she was sufficiently worried about this mould, in my view, she would have moved out and she voluntarily did not pursue any other remedy that was available to her at law.
She was also offered – and I accept – to be moved to a new property and, given that she’d been given her bond back, that she wasn’t going to be suffering any break lease consequences and, given the fact that at that point she was offered $1000 more than the costs she has, in fact, incurred to move to another premises – which is extremely reasonable on the part of Hugh Reilly – she chose to stay in this property and, in my view, her move to another property was assisted in every way possible by Hugh Reilly and she did not take that up. In my view, that claim should be refused also.[2]
- [12]The learned Magistrate ordered that the respondent pay to the applicant the amount of $1,222.50, comprising removalist’s costs in the sum of $972.50 and rent abatement regarding the ensuite in the sum of $250.
Application for leave to appeal or appeal
- [13]The applicant filed an ‘Application for leave to appeal or appeal’ in the QCAT Appeal Tribunal on 14 January 2020, along with an ‘Application to stay a decision’ (filed on 13 January 2020).
- [14]On 24 February 2020, the respondent filed a Response.
- [15]On 27 February 2020, the Appeal Tribunal refused the applicant’s application to stay a decision. On 5 March 2020, the Appeal Tribunal gave reasons for the refusal of the stay.[3]
- [16]On 17 March 2020, the respondent filed further submissions in response.
Applicant’s grounds of appeal and submissions
- [17]The applicant’s grounds of appeal can be summarised as follows:
- (a)The learned Magistrate ‘failed to disclose the possibility of a conflict of interest being that she is a neighbor (sic) of Barry Comben owner of Hugh Reilly Real Estate’, and ‘did not advise that herself and her family are socially active with Barry Comben. eg [the Magistrate’s husband] is actively social with Barry Comben on social media’. In her stay application, the applicant also argues that ‘The introductory interaction between Josey Comerford and [the Magistrate] immediately substantiated familiarity’.
- (b)The learned Magistrate ‘by her own admission was not familiarized (sic) with the case and openly criticized Magistrate Nolan by noting that this case should have been dealt with earlier and that he was negligent in not doing so. Judge (sic) Nolan was familiar with the case and fair.’ In her stay application, the applicant also argues that ‘This case was previously heard by Judge (sic) Nolan and it was not until the case was to be heard on the 20th of December that I was notified of the change of judge (sic).’
- (c)The learned Magistrate ‘was not aware of my initial Order 461 initiated on the grounds of suspected retaliatory action of Hugh Reilly preventing me from successfully accessing another property to lease.’ In particular, in the stay application, the applicant further argues that this made it unreasonable for the Magistrate to say that the applicant ‘should have simply moved out of the property’.
- (a)
- [18]The applicant further states, in her affidavit (submissions) to the Tribunal, that the court did not take into account various ‘instances of contradiction’. These all refer to questions of merit in the original decision.
- [19]The applicant asks the Tribunal to set aside the decision made on 20 December 2019 and substitute the following:
- (a)‘Lessor to pay compensation for failure to maintain property in a timely and safe manner’; and
- (b)‘Lessor to pay compensation for replacement of soft furnishings that I was advised to replace due to the readings of dangerous air borne mold (sic) found to be present.’
- (a)
- [20]The applicant also submits in her Application for leave to appeal or appeal that:
- (a)‘Had the lessor and or agent been attentive to my complaints this matter would not have escalated to court proceeding (sic).’
- (b)‘Had the lessor and or agent notified the mold (sic) analysis team at Field Engineering that they did not wish to accept the quotation requested by Hugh Reilly then I would have been able to employ the testing sooner and taking into account the analysis was conducted the very day I was moving my family it was not possible to prove to Hugh Reilly that the items had been disposed of. I could obtain affidavits of those present when the truck took the furniture to dispose of. Field Engineering could not conduct the testing whilst a quote was still open with Hugh Reilly.’
- (a)
- [21]It appears that the applicant’s main contentions with respect to the appeal are that the learned Magistrate had a conflict of interest, was not familiar with the case, and did not address the applicant’s suspicions of the respondent ‘blacklisting’ her name with other real estate companies.
Respondent submissions
- [22]The respondent submits that ‘the grounds of the Appeal and the contents of an affidavit of the Applicant dated 24 February 2020 in support of the Application for a stay are all directed towards the merits of the decision…’.
- [23]The respondent, referring to Burlington Realty Pty Ltd t/as Belle Property Paddington v McComb,[4] argues that there is no reasonable argument that the original decision was in error, no substantial injustice that requires correction, the decision was not contrary to compelling inferences, and the Tribunal correctly interpreted the relevant sections of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld).
- [24]The respondent submits that the Applicant is ‘unhappy with the decision and is using the Appeal as an opportunity to re-run the Application’.
- [25]With respect to the conflict of interest argument, the respondent submits that the ‘Applicant has not identified how the Magistrate being a neighbour of the managing sale partner of the Respondent amounts to a conflict of interest’ and submits that it was appropriate for the Magistrate to hear the application. The respondent submits that Barry Comben had very minimal involvement with the tenant or the property, and that the applicant has provided ‘no evidence that the existence of any personal friendship between [the Magistrate], Barry Comben and their respective families influenced her handing down a decision that could be considered unprofessional and/or unethical’. The respondent submits that the Magistrate’s familiarity with Josey Comerford was ‘professional courtesy and/or acknowledgement’ given Ms Comerford’s recent appearance before the Magistrate.
- [26]With respect to the second argument, that the Magistrate was unfamiliar with the case, the respondent submits that the applicant had sufficient opportunity to present her case at hearing: ‘each aspect of the claim being thoroughly discussed before moving forward’, and ‘before moving forward with the next aspect of the claim, the Magistrate sought confirmation from the [parties] that they were ready to move on’. The respondent submits that the ‘onus rests with the Applicant to present evidence in support of her case and her failure to do so does not amount to grounds for an appeal’. The respondent also submits that it does not have any control over the rotation schedule of sitting Magistrates.
- [27]The respondent submits that the applicant’s final ground of appeal is not relevant and does not amount to an error of the law. Even so, the respondent submits that the applicant’s failure to find a property is her own problem given her repeated late rental payments.
- [28]
Consideration
- [29]As this application is about a decision in the Tribunal’s minor civil dispute jurisdiction, the applicant must first obtain the Appeal Tribunal’s leave to appeal.[7]
- [30]There is no automatic right of appeal against minor civil dispute decisions. I respectfully adopt and endorse the following observations by former QCAT President Justice Alan Wilson in Durrand v Karaolis:
The Queensland Parliament has made it clear, in the QCAT Act, that so far as possible minor civil disputes of this kind are to be resolved by a simple procedure which is speedy, inexpensive and final. That conclusion is reinforced by the fact that before a party can appeal a decision in this jurisdiction it must obtain leave from the Appeal Tribunal … In other words, there is not an automatic right to appeal these decisions; rather an applicant must first establish that it has a right to a grant of leave.[8]
- [31]It is well established that leave will usually only be granted where it is necessary to correct a substantial injustice to the applicant, and where there is a reasonable argument that there is an error to be corrected.[9]
- [32]An application for leave to appeal is not an opportunity for a party to simply reargue the merits of the matter in the hopes of achieving a different outcome.[10]
- [33]In substance, the applicant makes the following arguments on appeal:
- (a)The Magistrate had a conflict of interest;
- (b)The decision should have been heard by Magistrate Nolan and/or the applicant was not notified of the change in magistrate until the day of the hearing; and
- (c)The Magistrate did not take into account the applicant’s contention that she had been ‘blacklisted’ by the respondent.
- (a)
- [34]I have reviewed the transcript of the hearing in full and considered all of the parties’ submissions.
- [35]With respect to argument (a), the applicant has not put forward any evidence about the existence of a relevant relationship between the learned Magistrate or her husband and the owner of the respondent real estate agency. Further, as the respondent rightly points out, the applicant has not demonstrated how being a neighbour of someone involved with one of the parties amounts to an actual or apparent conflict of interest.
- [36]The interactions between the learned Magistrate and Ms Comerford were not such as to give rise to a reasonable apprehension of bias on the part of the learned Magistrate.
- [37]I note that the learned Magistrate was astute to issues of potential apparent conflict of interest in raising, at the outset of the hearing, her husband’s ownership of the engineering firm engaged by the applicant to investigate mould issues.
- [38]The matters referred to by the applicant could not reasonably ground an argument that a fair-minded observer might reasonably apprehend that the learned Magistrate might not bring an impartial mind to the resolution of the dispute between the applicant and the respondent.[11] The applicant has no realistic prospect of demonstrating any actual or apparent bias on the part of the learned Magistrate.
- [39]The ground of appeal does not have sufficient prospects of success so as to ground a grant of leave to appeal.
- [40]With respect to argument (b), I have reviewed the transcript and can find no evidence of the learned Magistrate criticising Magistrate Nolan. The learned Magistrate frankly stated at the outset of the hearing:
I only received this file this morning and… we’ve had a massive week … it’s also extremely bizarre that all of this material has been filed … which I know there were directions to be done, but QCAT is supposed to be very quick and easy and with least expense … I certainly didn’t expect this much information…
- [41]It is the usual process in both the Magistrates Courts and the Tribunal that each matter will most commonly be allocated to whoever is available at that time. It appears from the file that this matter was heard previously by Magistrate Nolan for Directions on two occasions. But just because the matter is heard for Directions by a particular decision-maker does not mean that the final matter will be heard by the same. There is also no expectation that the parties will be notified of the identity of the decision-maker in advance of the hearing; this would frustrate the Tribunal’s objectives to be quick and economical.
- [42]Nothing in the transcript of the hearing or the learned Magistrate’s reasons suggests that the fairness of the hearing was in any respect affected by the learned Magistrate’s lack of prior familiarity with the matter. The learned Magistrate had ample opportunity to consider all material relied on by the parties and the detailed reasons for decision demonstrate due consideration of the relevant issues and the relevant evidence and adequately expose the learned Magistrate’s reasoning to her conclusions
- [43]There is nothing to this ground of appeal that would justify a grant of leave to appeal.
- [44]With respect to argument (c), it is entirely irrelevant to the real issues in dispute below and accordingly to the proposed appeal.
- [45]I consider that none of the three grounds raised by the applicant justify the grant of leave to appeal in this matter.
- [46]Insofar as the applicant further seeks to re-argue the merits of her application below, suffice it to say that the learned Magistrate’s conclusions leading to refusal of the applicant’s claims for rent abatement for the garage, cost of the engineering report and compensation for replacement of furniture were reasonably open to her Honour for the reasons given by her Honour. I can discern no error in her Honour’s reasons or conclusions such as to suggest that leave is required to correct a substantial injustice to the applicant or to correct any error.
- [47]Leave to appeal is refused.
Footnotes
[1] T1-67, lines 14 – 25.
[2] T1-67 – 69.
[3] Leonard v Hugh Reilly Real Estate [2020] QCATA 24.
[4] [2016] QCATA 110.
[5] [2016] QCATA 90 at [109]
[6] [2020] QCATA 4 at [27].
[7] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i).
[8] Durrand v Karaolis [2012] QCATA 182, [7] (omitting citations).
[9] Pickering v McArthur [2005] QCA 294; Burke v Commissioner of Police [2019] QCA 158. In this jurisdiction, see Goldfield Projects Pty Ltd v Queensland Building and Construction Commission [2020] QCATA 21.
[10] Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39.
[11] Ebner v Official Trustee in Bankruptcy (2000) 201 CLR 337.