Harcourts Mudgeeraba Property Management v Noda
[2021] QCATA 19
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- Harcourts Mudgeeraba Property Management v Noda[2021] QCATA 19
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Harcourts Mudgeeraba Property Management v Noda[2021] QCATA 19
Harcourts Mudgeeraba Property Management v Noda[2021] QCATA 19
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Harcourts Mudgeeraba Property Management v Noda & Anor [2021] QCATA 19 |
PARTIES: | burkell property holdings pty ltd t/as Harcourts Mudgeeraba property Management |
| (applicant/appellant) |
| v |
| david owen noda (first respondent) |
| LISA JANE NODA (second respondent) |
APPLICATION NO/S: | APL182-19 |
ORIGINATING APPLICATION NO/S: | MCDT741-19 Southport |
MATTER TYPE: | Appeals |
DELIVERED ON: | 2 February 2021 |
HEARING DATE: | 25 January 2021 |
HEARD AT: | Brisbane |
DECISION OF: | Member Howe |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where real estate agents claimed against tenants for damage done by methamphetamine contamination – where the claimed damage was remediated at a cost of over $29,000 – where there was no evidence when the contamination occurred if it occurred – where the Adjudicator dismissed the claim – where the agents sought leave to appeal on the basis that there was sufficient evidence to hold the tenants liable Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28(3) Pickering v McArthur [2005] QCA 294 Smart State Vehicle Rental Pty Ltd v Tri Asset Protection Systems Pty Ltd [2013] QCATA 16 |
APPEARANCES & REPRESENTATION: |
|
Applicant: | Self-represented by L Newcomb and J Russell |
Respondents: | Self-represented |
| 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
- [1]Mr and Mrs Noda were tenants of a residential property at the Gold Coast.
- [2]The applicant is a firm of real estate agents acting for the lessors.
- [3]Mr and Mrs Noda rented the property for two years until 27 May 2019, when they moved out because the lessors wanted to live there.
- [4]There was no complaint about the overall condition of the house when they vacated. The agents described it as immaculate.
- [5]Shortly after they left however, someone from a local Neighbourhood Watch group told the lessors that police had raided the property twice searching for drugs.
- [6]The agents contacted a company claiming an expertise in methamphetamine screening and remediation and engaged them to test the property.
- [7]The company claimed they found extensive methamphetamine contamination to much of the property.
- [8]The company was then engaged to decontaminate the property and the company subsequently charged the lessors $15,928 for that work. Additionally, such things as the oven, the carpets, light fittings, locks and even electrical cabling was advised by them to be replaced which took the full cost of the exercise to the lessors to $29,017.51.
- [9]The agents commenced proceedings in the Tribunal claiming those costs from Mr and Mrs Noda.
- [10]At the hearing of the claim before an Adjudicator a report from the company engaged to remediate the property was tendered by the agents.
- [11]After taking evidence from both parties the Adjudicator dismissed the agents’ claim on the basis they had not persuaded him to the requisite standard of proof that the Nodas were responsible for the claimed contamination.
- [12]The agents now seek leave to appeal that decision.
- [13]Given this is an appeal from a decision made in the Tribunal’s minor civil dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.[1]
- [14]Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.[2]
- [15]As often occurs in matters before the Tribunal where parties are self-represented, the applicants for leave to appeal fail to state with any degree of precision what error or errors are claimed to have been made in the decision below.
- [16]Here the agents say their original claim was dismissed because they “could not provide the link that would confirm that tenants were responsible for methamphetamine contamination.”
- [17]They then say the “link” is perhaps in police reports but the “Privacy Act” prevents them, the agents, from having access and they say:
We believe that this burden of proof is beyond the scope of a Property Management Agency and their representatives.
- [18]Finally in an addendum to the application they say:
An error based on natural justice we believe has occurred. Based on the balance of probabilities with the evidence our Agency provided, a different decision to allow justice should have been made.
- [19]Whilst confusing, the ground of appeal asserted appears to be that the decision of the Adjudicator was against the weight of the evidence led at trial.
The evidence at hearing
- [20]The Tribunal is not bound by the rules of evidence and can inform itself in any way it considers appropriate.[3] With that in mind, what material and evidence did the Adjudicator have before him?
- [21]The evidence of methamphetamine contamination at the property was derived from a report provided by a company called Methscreen dated 27 May 2019.
- [22]The report referred to sampling being done by a technician (presumably on 27 May 2019). What is noteworthy in matters such as this is in fact the following omissions: there was no identification of the technician’s qualifications; it is unclear what qualifications are necessary to conduct such testing; there was no information about the sampling techniques adopted; there was nothing in the report about the chemical products used; there was no statement about adherence to any established sampling standards (such as ensuring gloves were changed with each sample taken).
- [23]The actual laboratory testing was done by another company entirely but there was no evidence about ensuring the integrity of the chain of evidence concerned.
- [24]There was no evidence given at the hearing from either the technician who took the samples or from the person who conducted the tests at the laboratory.
- [25]Then there is the standard relied on by Methscreen, the Australian Government’s Clandestine Drug Laboratory Remediation Guidelines. There was no copy of that publication made available to the Adjudicator at hearing.
- [26]There was no evidence about the utility of that Guideline for use in civil proceedings.
- [27]The report claimed to find contamination in many rooms in the house as at 27 May 2019. After the hugely expensive remediation work suggested by Methscreen was done however, the only sampling evidence showing any change in “methamphetamine contamination” results at the property was for the garage where it was claimed the methamphetamine level had reduced to below the contamination standard of “.5”.
- [28]Apart from the garage however, there was no evidence that any of the remediation work done elsewhere in the house actually resulted in any change of levels.
- [29]Concerning the claimed police drug raids, Mr and Mrs Noda gave evidence at the hearing before the Adjudicator that police had telephoned Mr Noda at his work and asked if they could enter his premises (the rental premises) to speak to one of his adult sons. He gave that permission.
- [30]There was evidence that the Police attended twice, both times seeking that son. The son was subsequently charged with an offence but there was no evidence to suggest the charge was drug related.
- [31]There was no action taken by police against anybody else living at the home. Certainly there was no evidence that the police, after entering the property twice, found any clandestine drug laboratory operating there.
- [32]Mr and Mrs Noda gave evidence that an investigation by ABC News, Background Briefing, reported in an article on 16 March 2019, had been conducted into the behaviour of Methscreen. The article in question was handed up to the Adjudicator. The article disclosed that in nine cases of claimed methamphetamine contamination by Methscreen, subsequent testing arranged by ABC News showed the Methscreen results were between 28 and 250 times greater than subsequent tests conducted by environmental consultants engaged by ABC News.
- [33]In one case Methscreen found levels of residue consistent with an active drug manufacturing laboratory, but when subsequently tested by a different company the levels were so low as to be undetectable.
- [34]This then was the evidence presented to the Adjudicator.
Fresh evidence
- [35]The agents applied for leave to rely on fresh evidence at the hearing of the appeal.
- [36]The fresh evidence consisted of nothing more however than additional material bolstering the evidence already presented to the Adjudicator. There is nothing new in the material.
- [37]All of the claimed fresh evidence was to hand and available as at the date of the hearing but the agents chose not to use it.
- [38]Evidence is not fresh evidence simply because, after the hearing and in hindsight, it may have been usefully tendered.
- [39]The agents say in their application with respect to the fresh evidence that “we went back to the files and found further evidence relating to the matters”. It was clearly there and available for the hearing but not relied upon.
- [40]They also say the fresh evidence is important because of its probative value to further demonstrate a link between the tenants and the damage. There is no such link to be found in any of the material.
- [41]As explained by Wilson J, then President of the Tribunal, in Smart State Vehicle Rental Pty Ltd v Tri Asset Protection Systems Pty Ltd:[4]
The test for when new evidence will be allowed on appeal is, as Smart State acknowledges, ‘when it could not, by reasonable diligence, have been obtained for the original hearing, is credible, and might have produced the opposite result.’[5]
- [42]The fresh evidence was reasonably available for the hearing below. It adds nothing to the material placed before the Adjudicator. It has no potential to produce a different result.
- [43]The application to produce fresh evidence is refused.
Consideration
- [44]The Adjudicator found Mr and Mrs Noda to be truthful witnesses and accepted their denials that any methamphetamine laboratory had been run by them from the home over the period of their tenancy.
- [45]The Adjudicator also found that, based on the test report from Methscreen, there had been drugs used at the property. The Adjudicator did not accept however that Mr and Mrs Noda were responsible for that. He determined that the agents had failed to prove their case on the balance of probabilities.
- [46]Generally there was no evidence of any clandestine drug laboratory operating from the premises. The police attended twice and nothing arose out of that.
- [47]The claim about a drug laboratory operating there only came about through hearsay conjecture by someone from a Neighbourhood Watch group who saw police attending the premises who then surmised that perhaps drugs were involved.
- [48]Certainly, even if there was contamination (about which the evidence is most unsatisfactory) there was no evidence about when the contamination occurred. The property may already have been contaminated, if contaminated, when Mr and Mrs Noda first moved in as tenants in 2017.
- [49]That objection, about no proven time of contamination, was specifically raised by Mr and Mrs Noda at hearing.
- [50]The Adjudicator was entitled to find, on the limited evidence placed before him, that he was not satisfied on the balance of probabilities that the Nodas were responsible for any methamphetamine contamination at the property, if indeed there was contamination.
- [51]There is no prospect of success with respect to this ground of appeal.
Insurance
- [52]The agents also say in their application for leave to appeal that:
The Adjudicator claimed the costs would be met by our clients (sic) insurance company. The insurance company has declined their application.
- [53]It is not clear how this complaint constitutes a ground of appeal.
- [54]The transcript of proceedings in the hearing below shows the issue of insurance was raised from the outset by the agents:
MS NEWCOMBE: … we’re here, sir, to recoup moneys and to have some order brought down by the court so that we can claim malicious damage on insurance, perhaps, and to note these people as unsuitable tenants in future.
ADJUDICATOR: Well, that’s another matter altogether. Why, Ms Newcombe, have you not claimed insurance already?
MS NEWCOMBE: Well, insurance for malicious damage or insurance cannot take place or be claimed for until we have an order from the court.
ADJUDICATOR LEMASS: That’s very strange. That’s precisely what insurance is for. Ms Newcombe, why is it that you say that the respondents, Mr and Ms Noda, have caused this damage?[6]
- [55]Then when giving his reasons for decision the Adjudicator said:
ADJUDICATOR: So I have asked Ms Newcombe initially as to why the owner’s insurance would not respond to such an outcome. They are victims of crime. There has been damage in the property, and that’s why people insure their properties. Ms Newcombe wants to tie this somehow to this decision, and I don’t know how she does that.
- [56]Then after the reasons for decision were given and the claim against the Nodas dismissed the agents continued to argue about damage done at the property and the following is recorded in the transcript:
ADJUDICATOR: That’s why the owner has insurance. You have insurance for that in case there’s a floor, or there’s lighting, or there is damage by criminals.
MS MORLEY: But insurance companies, your Honour, with respect, are very unreliable.
ADJUDICATOR: They do nothing but take premiums and say no.
MS MORLEY: Yes, that’s right.
- [57]The references to “floor” and “lighting” are obviously mistakes by the transcription service and what was referred to by the Adjudicator was “flood” and “lightning”.
- [58]There was nothing more said about insurance.
- [59]There is no ground of appeal here. There was no statement by the Adjudicator that the claim brought by the agents would be paid by insurance.
Conclusion
- [60]There is no prospect of any successful appeal in the matter.
- [61]The application for leave to appeal is refused.