Wise v Ray White Nerang[2021] QCATA 71

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   An Adjudicator decided a dispute between a tenant Carly Wise and a lessor represented by the property managers Ray White Nerang, about the financial consequences of matters arising during and on termination of, the tenancy.  The tenant now appeals against the decision.
2. [2]
   The tenant had a fixed term tenancy for 12 months but she left after nine months, having served a notice of intention to leave (Form 13) purportedly ‘with grounds’.  At the time of her departure some rent was unpaid so this also had to be taken into account.  The tenant brought a counter application in which she claimed compensation and rent reduction under a number of heads over the whole period of the tenancy.  Although the Residential Tenancies Authority had paid out the rental bond in error, both parties sought a formal order as to how it should be divided in the light of their respective claims.
3. [3]
   The application and counter application involved a number of legal issues governed by the Residential Tenancies and Rooming Accommodation Act 2008 (Qld).  On Ray White’s case the issues were the circumstances in which a tenant could serve an effective Form 13 before the expiry of the tenancy agreement and rely on it to terminate the tenancy, and therefore not be breaking the lease on leaving early.^[1]  Another was a question of mitigation of the reletting period should the tenant have broken the lease.^[2]  On the tenant’s counter application there were issues about the need to make a dispute resolution request to the Residential Tenancies Authority about an issue and the conciliation process having ended, before being able to apply to the tribunal about the issue.^[3]  There were questions about the six month time limit to make the dispute resolution request after becoming aware of a breach for which compensation was sought.^[4]  And questions about the correct timing and justification for a claim for reduction of rent over a period of time,^[5] bearing in mind the counter application was brought some eight weeks after the tenant had left the tenancy.
4. [4]
   The factual complexity of numerous events which had occurred over a period of time meant that resolution of the case required some skill.  As sometimes happens in such disputes, the task was not made easier by succinct and clear presentation of the case by the tenant.  Instead, the tenant filed a volume of paperwork (equivalent to two full loose leaf folders), much of which was duplicated and not paginated or indexed.
5. [5]
   The Appeal Tribunal has obtained a transcript of the hearing and so it can be seen what happened.  The hearing lasted three hours and at the end of the hearing the Adjudicator gave a decision with full reasons.  The Adjudicator decided that the tenant could not rely on the Form 13 to end the tenancy because the breach alleged in the grounds relied on in that form had all previously been remedied.^[6]  Hence the tenant was obliged to pay compensation for the break lease in the sum of $891.43, which added to the arrears of rent of $1,502.86 plus $50 for a missing fob on departure, came to $2,444.29 owed by the tenant.^[7] 
6. [6]
   On the tenant’s claim, the Adjudicator allowed claims for no oven over eight weeks at $25 a week, no blinds over eight weeks at $30 a week and no dishwasher over eight weeks at $25 a week – a total of $640,^[8] and for problems with the air conditioning $1,000,^[9] making a total of $1,640.
7. [7]
   The Adjudicator disallowed a number of claims for lack of cleanliness in the property because the parties had settled all cleaning claims with a payment of $600 which had already been made to the tenant.^[10]  The Adjudicator disallowed the tenant’s claim in respect of expenditure on a mould report because this had been arranged by her before moving in,^[11] and for being unable to use a car park space because this had not been conciliated and in any case would be outside the six month time limit as a compensation claim.^[12]
8. [8]
   Bearing in mind the way in which the counter application was presented, the Adjudicator was entitled to rely on the tenant to identify those matters which needed to be dealt with in the hearing.  On no less than five different occasions, and again after giving his reasons, the Adjudicator went through the various items of claim and then asked the tenant whether there was anything else that she was claiming for which had to be dealt with.^[13]  For this reason the Adjudicator would have been, and the Appeal Tribunal is, confident that the whole of the tenant’s claim was resolved at the hearing before the Adjudicator.
9. [9]
   In this appeal, the tenant says that the Adjudicator ‘dismissed half the claim as they needed the notice of unresolved dispute from RTA’.  A notice of unresolved dispute (NURD) dated 4 March 2020 - the same date as the hearing - is therefore offered as ‘fresh evidence’.  This is said to enable the Appeal Tribunal to work back over the period of six months from the notice of dispute to award more compensation.^[14]
10. [10]
    It appears that the tenant might believe that it is possible to restart the six month time limit to bring a claim for compensation in the tribunal by sending a dispute resolution request on form 16 to the RTA.  But this is not the case.  Once the six month time limit has expired it cannot be revived.
11. [11]
    In any case it is incorrect that the Adjudicator made any decision in the counter application because of the absence of this NURD.  It is true that at one time during the hearing the Adjudicator did ask whether there was a NURD corresponding with a dispute resolution request.^[15]  As the Adjudicator was aware, there were three dispute resolution requests (on form 16) which covered various issues,^[16] and the Adjudicator had the first and third of these before him.  The Adjudicator would have been aware that each of these dispute resolution requests would have had a NURD issued in respect of them, which would enable the issue to be raised in the tribunal, and this is how the Adjudicator approached the matter.  There is nothing indicating that the absence of a NURD affected the Adjudicator’s decision.
12. [12]
    For that reason the NURD now sought to be introduced as fresh evidence is not pertinent to the appeal, or any rehearing of the matter.  On that basis I refuse leave to introduce this fresh evidence in the Appeal Tribunal.
13. [13]
    There is nothing else that the tenant has identified as an error made by the Adjudicator.  In response to the Appeal Tribunal’s directions that she identify such an error, she simply filed particulars of the counter application which she had filed in the tribunal below.
14. [14]
    Leave to appeal can only be granted if there is an arguable ground of appeal.  Here the documents filed by the tenant in respect of the appeal disclose no such arguable ground, so leave to appeal is refused.  This means that the appeal fails.