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Li v Morgan Jade Heading ATF the JE Trust (No 2) QCATA 107
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Li & Ors v Morgan Jade Heading ATF the JE Trust & Anor (No 2)  QCATA 107
MoRGAN JADE HEADING As trustee for the je trust
ALL ROUND REAL ESTATE PTY LTD T/A LJ HOOKER MACKAY
ORIGINATING APPLICATION NO/S:
7 September 2021
On the papers
Judge Allen QC, Deputy President
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – FAILURE TO GIVE REASONS FOR DECISION – ADEQUACY OF REASONS – appeal from a Magistrate constituting the Tribunal to hear and determine a minor civil dispute – where leave to appeal is required – whether leave to appeal should be granted – whether adequate reasons given by Tribunal for decision
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGES FINDINGS OF FACT – appeal from a Magistrate constituting the Tribunal to hear and determine a minor civil dispute – where leave to appeal is required – whether leave to appeal should be granted – whether factual findings reasonably open to Tribunal
LANDLORD AND TENANT – COVENANTS – AS TO REPAIR – FAIR WEAR AND TEAR EXCEPTION – where lessor claimed for cost of repairs upon termination of residential tenancy agreement – where tenants claimed that damage was fair wear and tear or had been sufficiently repaired by tenants – whether evidence permitted findings by Tribunal that damage was not fair wear and tear
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i), s 147(2)
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 188(4), s 429
Bradlyn Nominees Pty Ltd v Saikovski  QCATA 39
Burke v Commissioner of Police  QCA 158
Durrand v Karaolis  QCATA 182
Ebner v Official Trustee in Bankruptcy (2000) 201 CLR 337
Fox v Percy (2003) 214 CLR 118
Griffin v Gini  QCATA 325
Goldfield Projects Pty Ltd v Queensland Building and Construction Commission  QCATA 21
Li & Ors v Morgan Jade Heading ATF The JE Trust & Anor  QCATA 25
North South Real Estate & Anor v Kavvadas  QCAT 306
Pickering v McArthur  QCA 294
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
- The applicants, Ming-Chi Li, Capri Journi and Nick Lyu, were tenants pursuant to a residential tenancy agreement, subject to the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRAA), with the first respondent lessor, Morgan Jade Heading as trustee for The JE Trust, by the first respondent’s agent, the second respondent, All Round Real Estate Pty Ltd, trading as LJ Hooker Mackay.
- The applicants paid $1200.00 as bond to the Residential Tenancies Authority (RTA).
- The applicants vacated the property on 7 May 2019.
- Following the termination of the tenancy, a dispute arose between the applicants and the respondents as to the condition in which the residential premises were left and the respective parties’ entitlement to the bond held by the RTA.
- The parties failed to resolve their dispute by mediation.
Minor Civil Dispute proceedings
- On 8 July 2019, the respondents filed an ‘Application for minor civil dispute – residential tenancy dispute’ in the Mackay registry of the Queensland Civil and Administrative Tribunal (Tribunal) seeking, pursuant to section 429 of the RTRAA, an order that the $1200.00 bond held by the RTA be paid to the second respondent and that the applicants pay an additional sum of $299.52 with the claim particularised as follows:
- (a)Repairs – $1376.32
- (b)Filing Fee – $123.20.
- In the application, the respondents asserted:
Tenant vacated the property on 07/05/2019 a vacate inspection was completed on 09/05/2019 and noted several issue’s (sic) being cleaning, lightbulbs and fitting missing, back door damage, damages to walls in multiple rooms, kitchen bench, mailbox, yard and sticky tape over lights and drains, damages to tiles. The tenant was given the opportunity to rectify these item’s (sic). However the wall’s (sic) have not been repaired to standard.
- The respondents attached an invoice from Weber Builders & Property Maintenance dated 11 June 2019 in proof of the claim for $1376.32 for repairs, particularised as follows:
Attend to the property, patch and paint all holes and dents as directed. Prep for paint. Install mail box and fix the tiles in the laundry as per vacate list provided.
Replacement of the back door
TOTAL GST 10%
- The matter was heard and determined on 28 November 2019 by a Magistrate constituting the Tribunal. The first applicant appeared by telephone and the respondents were represented by an employee of the second respondent.
- The learned Magistrate considered evidence including the following:
- (a)the invoice from Weber Builders & Property Maintenance dated 11 June 2019;
- (b)an entry condition report signed by all three applicants on 12 February 2014;
- (c)an exit condition report dated 9 May 2019 (not signed by any of the applicants), including approximately 95 photographs documenting the condition of the premises, on that date;
- (d)a statement of Liam Starrett dated 17 May 2019;
- (e)an affidavit of Mr Starrett sworn on 24 September 2019;
- (f)unsworn telephone evidence from Mr Starrett;
- (g)affidavits of the first applicant;
- (h)unsworn telephone evidence from the first applicant;
- (i)email correspondence between the applicants and the second respondent relevant to the dispute; and
- (j)photographs of the property taken by the applicants following their purported making good of the premises after vacation.
- The learned Magistrate made his final decision in favour of the respondents on the day of the hearing and made orders that:
…the [applicants] pay $1376.00 to [the respondents] … [Applicants] pay QCAT filing fee of $123.20.
- On 29 November 2019, the RTA advised that they were unable to release the bond because of the wording of the order, and an amended decision was issued to the parties on 5 December 2019:
..I order the RTA to pay to [the second respondent] the bond of $1200 and the [first applicant] is to pay to the [second respondent] $176.00 for the repairs to the door. Plus filing fees of $123.20.
Application for leave to appeal or appeal
- The applicants filed an ‘Application for leave to appeal or appeal’ in the Appeal Tribunal on 29 November 2019, along with an ‘Application to stay a decision’.
- On 21 February 2020, the Appeal Tribunal refused the application to stay a decision. On 5 March 2020, the Appeal Tribunal gave reasons for the refusal of the stay.
Applicants’ grounds of appeal and submissions
- The proposed grounds of appeal are stated as follows:
I suffered injustice as all my photographic evidence has been overlooked by former magistrate; and
I suffered bias as my subsequent email correspondence to Respondent has been ignored by former magistrate.
- The applicants seek :
Full bond release due to the following:
- laundry door issue was approved as rectified by LJ Hooker on 17th May 2019 yet they are still seeking damages from me for its replacement.
- All paint work repairs fall under “fair, wear & tear” after a long lease of 4.5 years and should not be fixed by the former tenant in the first place yet LJ Hooker is still nickpicking (sic) on the quality of the repair work by my tradesman.
- The applicants’ written submissions may be fairly summarised as follows:
- (a)The Magistrate exhibited bias against the applicants by his hostile and dismissive treatment of the first applicant during the hearing;
- (b)The Magistrate refused to acknowledge any of the applicants’ photographic evidence for the repair work done by Mr Starrett and constantly referred to the photos by the second respondent instead;
- (c)The Magistrate refused to give proper consideration to the email correspondence between the parties as to items requiring repair;
- (d)The Magistrate erred in failing to find that the damage to the laundry door was caused externally by flooding;
- (e)The Magistrate erred in failing to find that all the repairs claimed by the respondents related to fair wear and tear during the course of a long tenancy.
- The respondents submit that the Magistrate’s decision should not be disturbed as it was the correct decision on the evidence before the Tribunal. The applicants chose to have an unqualified person attempt to rectify wall damage and the repairs were sub-standard. The respondents were then required to engage a painter to perform necessary rectification.
Leave to appeal
- As this application is about a decision in the QCAT’s minor civil dispute jurisdiction, the Applicant must first obtain the Appeal Tribunal’s leave to appeal.
- 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.
- 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.
- An appeal is not an opportunity for a party to simply reargue the merits of the matter in the hopes of achieving a different outcome.
- I have reviewed the transcript of the hearing in full and considered all of the parties’ submissions.
- The applicants’ assertion that the learned Magistrate exhibited bias against the applicants because of his attitude towards the first applicant during the hearing may be disposed of shortly. The transcript revealed that the learned Magistrate did display some frustration with the difficulties presented by the first applicant addressing the case for the applicants, including by reference to photographic evidence tendered by both parties, by telephone and in calling evidence from Mr Starrett by telephone. His frustration was understandable; however it is also understandable that the first applicant may have perceived from the learned Magistrate’s comments that his frustration was unfairly directed at her in circumstances where another Magistrate had earlier directed that the first applicant could appear by telephone and call evidence from Mr Starrett by telephone. Notwithstanding the first applicant’s perception, on a perusal of the entirety of the transcript, it cannot reasonably be argued 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 applicants and the respondents. The applicant has no realistic prospect of demonstrating any actual or apparent bias on the part of the learned Magistrate.
- Putting that assertion aside, the applicants’ proposed grounds of appeal are properly interpreted as a ground that the learned Magistrate’s decision was not reasonably open and against the weight of the evidence. The respondents are not prejudiced by such a framing of the grounds of appeal. Such ground is reasonably arguable.
- Further, the learned Magistrate has not provided adequate reasons for his findings relating to such arguable ground. The learned Magistrate has failed to adequately address the evidence relating to such matters and explain his conclusions with reference to such evidence. That constitutes an error of law.
- Although the quantum of the dispute is not large, the applicants were entitled to proper reasons for the judgment against them. The failure to provide them constitutes a substantial injustice to the applicants and there is a reasonable argument that there is an error to be corrected.
- Leave to appeal is granted.
- At the end of a tenancy the tenant must leave the premises as far as possible in the same condition they were in at the start of the tenancy, fair wear and tear excepted.
- I will deal firstly with the applicants’ argument that they should not have been found liable for the cost of repairs by patching and painting of walls of the premises for two reasons:
- (a)The damage was fair wear and tear during the course of a long tenancy and the applicants were therefore not liable for its repair; and
- (b)Nevertheless, the applicants engaged Mr Starrett to perform such repairs thus making good the repairs.
- Despite the applicants’ assertions to the contrary, the transcript reveals the learned Magistrate did consider the photographic evidence tendered by both parties in reaching his conclusions regarding the applicants’ liability to pay for the repairs by patching and painting of walls of the premises. He also considered the written and viva voce evidence of Mr Starrett and the first applicant.
- The applicants engaged Mr Starrett, not a painter by trade but an experienced handyman, to perform paint repair work to the walls of the house. The respondents were not satisfied with Mr Starrett’s work and later engaged Weber Builders to repair and paint the walls.
- Mr Starrett gave evidence, and the applicants contended, that it was not possible to exactly colour match the paint repairs with existing paint and painting all the walls was not justified. The applicants argued that Mr Starrett’s work was sufficient to discharge any obligation of the applicants to make good the premises upon termination of the tenancy.
- The learned Magistrate rejected the applicants’ contentions that Mr Starrett’s work had made good the damage to the walls. The subsequent repairs to the walls were therefore necessary to make good the damage and the respondents were entitled to recover the costs of those repairs.
- Whether or not the damage immediately prior to Mr Starrett’s work was properly characterised as “fair wear and tear” became moot once he had carried out such work. Such work caused damage that fell outside the scope of fair wear and tear. Although commissioned by the applicants with the best of intentions, Mr Starrett’s work failed to properly make good the damage, whether that damage might have been fair wear and tear or not, and itself constituted damage requiring repair.
- Although not expressed in those terms, such were the implicit findings of the learned Magistrate. Such findings were reasonably open on the evidence, in particular the photographic evidence. The Appeal Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting such conclusions.
- I do not find that the learned Magistrate erred in allowing that part of the respondents’ claim.
- The respondents had consistently claimed the applicants’ liability for the damage to the walls. The same was not the case for other components of the respondents’ claim in the Tribunal.
- Email correspondence between the applicants and the second respondent on 17 May 2019 included an email from the applicants in which the applicants specifically address all the alleged defects, including those relating to the laundry door and mailbox, and a reply from the second respondent insisting that Mr Starrett’s work on the walls was not acceptable rectification and concluding, “All other items have been marked off as rectified.” Although such statement did not operate to prohibit a subsequent claim relating to rectification of other items, it did require due consideration by the learned Magistrate when considering the applicants’ liability for subsequent repairs to those items referred to in the Weber Builders invoice as “Install mail box and fix the tiles in the laundry as per vacate list provided” and “Replacement of the back door”.
- It is also notable that the terms of the respondents’ ‘Application for minor civil dispute – residential tenancy dispute’, whilst referring to a number of items requiring rectification and the applicants being given the opportunity to rectify, concluded with a claim of only the “wall’s (sic)” not being “repaired to standard”.
- The email correspondence on 17 May 2019 and terms of the claim are consistent with the first applicant’s evidence that the applicants were provided with a list of defects according to the exit condition report of 9 May 2019, took steps to address the items of concern, including engaging Mr Starrett to effect repairs, and provided explanations why the applicants should not be held to be liable for certain items, and that the respondents were, as at 17 May 2019, satisfied that all matters had been rectified or properly explained, other than the damage to walls.
- The first applicant asserted during the hearing that the damage to the laundry door was caused by external flooding during a weather event. Mr Starrett expressed the same opinion during the hearing, based on his observations of the damage itself and the geography of the land adjoining the door.
- The learned Magistrate’s reasons for allowing the claim for repairs to the laundry door are as follows:
In regards to the door in the laundry, Ms - Ms Ming-Chi Li says that – and Mr Jar – Mr Starrett said that he was engaged by the respondent to fix – look at the door. Now, I’m not too certain, it’s not un – it’s not clear to this tribunal as to why the respondent would ask Mr Starrett to fix something that she says didn’t occur by her – her doing. Now, she lived in the property for four to five years. It’s not actually clear, but she lived there for some time and she says that the do – proper – the door was damaged from flash flooding in 2018. I’ve heard no evidence as to whether that became known to the real estate company regarding the damage of that door from the flash flooding of 2018. And whenever and if that was the case there’s no evidence of it being notified to – to the landlord or the real estate company.
And the letter that has been – or email that has been provided by the respondent indicates that the doorstep of the laundry cannot be reinstalled due to – the door without causing further damage to it as it suffers from wet rot due to the weather such as the flash flooding of 2018. And, well, Mr Starrett was asked on behalf of the respondent to fix that for – it’s not clear to this tribunal as to why she considered that as part of her duties and Mr Starrett said it’s for fair wear and tear. However, the real issue here is that, if that is the case, then the respondent may have to take her action up against Mr Starrett if that is the situation.
- I do not understand what possible recourse of the first applicant against Mr Starrett the learned Magistrate may have been referring to in the context of damage to the laundry door. Mr Starrett did not attempt repairs to the door. Perhaps the learned Magistrate was instead referring to Mr Starrett’s work regarding the walls. The learned Magistrate does immediately go on to refer to that topic, before returning to the laundry door as follows:
And there is nothing in the entry report that indicates that the laundry door is damaged. And it’s – and I note that in the entry report it’s – indicates that the laundry door had:
Fresh white paint, one doorstep, one black timber painted door with glass panel, one –
And with one doorstop. And there is nothing indication – no indication on behalf of the tenant acknowledging that there is any damage to that property, that part of the house.
- It is difficult to see how the contents of the 2014 entry condition report could assist the Tribunal in resolving a dispute as to whether the damage to the laundry door was caused by flash flooding in 2018.
- Although referring to the applicants’ contentions regarding the cause of damage to the laundry door in their email of 17 May 2019, the learned Magistrate made no reference to the reply by the respondents in which they, at least implicitly, accepted the applicants’ contention. He did not refer to the terms of the respondents’ claim as discussed in paragraph  of these reasons.
- The fact that the applicants had Mr Starrett look at possible repairs to the laundry door – he did not in fact attempt such repairs – provided an insufficient foundation to reject the evidence of the first applicant and Mr Starrett as to the cause of such damage. Neither did the mere assertion by the representative of the respondents at the hearing that the photographs revealed interior damage to the door.
- The learned Magistrate has not given adequate reasons for rejecting the evidence of the first applicant and Mr Starrett as to the cause of damage to the door.
- Damage to the door by a weather event would be properly classed as fair wear and tear for which the applicants were not liable. The finding of the learned Magistrate that the applicants were liable for the damage to the door was against the weight of the evidence and not reasonably open. The appeal should be allowed in respect of the learned Magistrate’s decision with respect to that part of the respondents’ claim.
- Notwithstanding the respondents’ implied admission in the email correspondence of 17 May 2019 that the applicants were not liable for any repairs apart from to the walls of the residence, the learned Magistrate failed to advert to the fact that the amount claimed (and awarded) was the total amount of an invoice that included items “Install mail box and fix the tiles in the laundry as per vacate list provided”. That is apparent from his ultimate ruling that “the amount of $1376.32 the – for the repairs to the walls and the painting and the lau – repair – wall repair and painting and the laundry door be granted to the … – be granted to the applicant.”
- In their email on 17 May 2019, the applicants specifically disavowed any responsibility for any damage to the letter box, asserting it was caused by wear by weather events. By their reply, the respondents implicitly accepted such assertion. There was no evidence before the Tribunal to the contrary. Neither was there any cogent evidence on which to base a finding of the applicants’ liability for repairs to tiles in the laundry. The learned Magistrate made no findings as to the applicants’ liability for replacement of the mail box and repairs to the tiles. There was insufficient evidence on which he could have done so. The appeal should be allowed in respect of the learned Magistrate’s decision with respect to those parts of the respondents’ claim.
- The evidence before the Tribunal did not permit a finding that the applicants were liable for anything more than the cost of repairs to the walls of the premises.
- The Appeal Tribunal is empowered to consider additional evidence on appeal. The Appeal Tribunal sought additional evidence from the respondents as to the breakdown of the amounts claimed in the first item of the invoice of Weber Builders. The respondents provided the Appeal Tribunal with an email from Weber Builders stating that replacement of the mail box required 1 hour of labour and $32.50 (presumably the cost of a new mail box) and repairs to laundry tile required 1 hour of labour and $8.80 in materials. Those items thus amount to $140 for labour and $41.30 for materials plus 10% GST, totalling $199.43. That amount plus the additional amount for replacement of the laundry door in the sum of $468.16 (including GST) should not have been allowed by the learned Magistrate. The Magistrate should have allowed no more than $708.73 of the respondent’s claim and the filing fee of $123.20. Such an order would have required orders for release by the RTA to the applicants of part of the bond held by the RTA and the release of the balance to the respondents. Presumably the full bond has been released to the respondents and the orders of the Appeal Tribunal will reflect that. Deduction of the sum of $831.93 from the $1200 amount of the bond results in a sum of $368.07 owing by the respondents to the applicants. The Tribunal will order that that sum of money be paid by the respondents to the applicants.
Application for minor civil dispute filed 08/07/19, page 4.
Li & Ors v Morgan Jade Heading ATF The JE Trust & Anor  QCATA 25.
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i).
Durrand v Karaolis  QCATA 182,  (omitting citations).
Pickering v McArthur  QCA 294; Burke v Commissioner of Police  QCA 158. In this jurisdiction, see Goldfield Projects Pty Ltd v Queensland Building and Construction Commission  QCATA 21.
Bradlyn Nominees Pty Ltd v Saikovski  QCATA 39.
Ebner v Official Trustee in Bankruptcy (2000) 201 CLR 337.
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), section 188(4).
See Griffin v Gini  QCATA 325 at - and North South Real Estate & Anor v Kavvadas  QCAT 306 at .
Griffin v Gini  QCATA 325 at -.
Fox v Percy (2003) 214 CLR 118.
See paragraph  of these reasons.
Transcript page 1-35, lines 1-20.
Transcript page 1-35, lines 27-36.
Transcript page 1-36, lines 8-14.
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 147(2).
- Published Case Name:
Li & Ors v Morgan Jade Heading ATF the JE Trust & Anor (No 2)
- Shortened Case Name:
Li v Morgan Jade Heading ATF the JE Trust (No 2)
 QCATA 107
Judge Allen QC
07 Sep 2021