Peng v Beikoff[2021] QCATA 144

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Ms Peng is the owner of a residential property at Upper Caboolture. Between September 2016 and the end of August 2018, Ms Beikoff rented the property from her under a Residential Tenancy Agreement. When the tenancy came to an end she vacated the property on 27 August 2018.
2. [2]
   At the time Ms Beikoff decided to leave the property at the end of the tenancy agreement, the property was being managed by RE/MAX at Caboolture who took over the management on 2 July 2018. Prior to that the managing agent was LJ Hooker Caboolture.
3. [3]
   At the commencement of the tenancy, an entry report was completed by LJ Hooker and presumably, although it is not clear, there would have been inspections of the property during the intervening period. At the conclusion of the tenancy, the property was inspected by the RE/MAX agent, Debbie Thompson, who was satisfied with the condition of the property. After that, when Ms Peng became involved, RE/MAX then contacted Ms Beikoff with further items of cleaning that required attention. Those matters were attended to by Ms Beikoff, with the assistance of her father, and after another inspection, RE/MAX was satisfied that all matters raised had been attended to and authorised the release of the bond.
4. [4]
   However, the bond was not released, and Ms Peng then made a claim for further cost of carrying out repairs and maintenance in the sum of $6,500 in reliance on a report from Mowman Property Maintenance & Handyman Services dated 24 September 2018. There were 17 specific items which include internal painting for walls and repairs.
5. [5]
   When the bond was not released, and a dispute developed, Ms Peng filed an application in the Minor Civil Disputes jurisdiction of the Tribunal claiming the cost of repairs in accordance with the Mowman report. Ms Beikoff sought an order that the bond be released to her.
6. [6]
   A hearing was conducted before a Tribunal adjudicator on 13 June 2019 and a transcript of that hearing has been provided. At the conclusion of the hearing the learned adjudicator gave reasons for her decision to dismiss Ms Peng’s claim and ordered the release of the bond of $1,560 to Ms Beikoff.
7. [7]
   From that decision, Ms Peng has filed an application for leave to appeal or appeal. In respect of the grounds appeal, there is an attachment A to the application which is a reiteration of all matters that were argued before the learned adjudicator and which is contained in the documents filed by both parties in the minor civil dispute proceeding. The attachment nor any of the other documents filed in the appeal identify specific error of law or error of mixed fact and law.
8. [8]
   Furthermore, after Ms Beikoff filed her response to the appeal, Ms Peng then filed an application to lead fresh evidence. The evidence is contained in a document filed by Ms Peng dated 30 September 2019. The evidence attached to that application and statement, even if it were admitted, does not advance the case for Ms Peng because it is simply email correspondence between her and Debbie Thompson concerning the extra work that had to be carried out when Ms Beikoff vacated the property. Those emails had already been included in the evidence that was put before the learned adjudicator.
9. [9]
   In so far as the submission addresses the break up of the $6,500, is not really to the point because the essence of the learned adjudicator’s decision is that whether the Mowman report is correct or not or the costings are reasonable, the decision turned on whether Ms Beikoff had left the property in a condition, subject to reasonable wear and tear, similar to that which it was when she took possession in September 2016. The evidence sought to be admitted is not evidence but further submissions on the evidence that was presented at the original hearing. Even if it could be deemed to be new evidence or fresh evidence, then the criteria to be considered for its admission into this appeal has not been satisfied. It is incumbent upon Ms Peng to satisfy the Tribunal that:

   1. (a)
      the evidence could not have been obtained with reasonable diligence for use at the trial;
   2. (b)
      the evidence if allowed would probably have an important impact on the result of the case; and
   3. (c)
      the evidence is credible though it need not be incontrovertible.^[1]

10. [10]
    Ms Peng’s appeal is brought under s. 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 which provides that in respect of a decision in a proceeding of a minor civil dispute an appeal may be made only if the party has obtained leave of the Tribunal. Leave to appeal will usually only be granted where there is a reasonable argument the decision was attended by error, or that an appeal is necessary to correct the substantial injustice caused by an error.^[2] The Appeal Tribunal will not interfere with findings of facts which were open on the evidence before the decision maker.^[3]
11. [11]
    An application for leave to appeal is not simply an opportunity to reiterate the arguments made at the hearing below in the hope of obtaining a different outcome.^[4] Put another way, it is not a rehearing on the merits of the matter that was before the primary decisionmaker. As already mentioned, the grounds of appeal do not specifically identify any particular error on the part of the learned adjudicator but argues that a different conclusion should have been reached.
12. [12]
    In the learned adjudicator’s reasons, the evidence and submission of both parties was carefully considered in making findings of fact which importantly included that from the commencement of the tenancy, the property had not been painted since it was acquired by Ms Peng in 2008. The learned adjudicator was satisfied that Ms Beikoff, when it came time to terminate the tenancy worked with RE/MAX to ensure that it was handed over in a condition consistent with that which it was when Ms Beikoff entered into possession. RE/MAX was satisfied with Ms Beikoff’s efforts in cleaning the property and making any repairs that were required in particular, with respect to the broken glass.
13. [13]
    The learned member made a finding, consistent with the evidence that “The tenant returned the property in the same condition as it was at entry, subject to wear and tear, having regard to the entry condition report that was signed by the tenant and also having regard to the action of the owner’s agent on vacate”. Furthermore, the agent was the agent for the owner and authorised to act on her behalf at the conclusion of the tenancy.
14. [14]
    Ms Peng has not been able to demonstrate, despite the lengthy submissions and the fresh evidence she seeks to submit, that the learned adjudicator fell into error both in application of the legal principles, or in accepting the facts upon which the decision was based which were clearly open on the evidence before the Tribunal.
15. [15]
    In the circumstances there is no basis upon which leave to appeal can be granted. Leave to appeal is refused.