Local Realtors (Qld) Pty Ltd v Williamson
[2022] QCATA 173
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- Local Realtors (Qld) Pty Ltd v Williamson[2022] QCATA 173
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Local Realtors (Qld) Pty Ltd v Williamson[2022] QCATA 173
Local Realtors (Qld) Pty Ltd v Williamson[2022] QCATA 173
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Local Realtors (Qld) Pty Ltd v Williamson [2022] QCATA 173 |
PARTIES: | localrealtors (qld) pty ltd t/as local realtors (appellant) v Troy Williamson (respondent) |
APPLICATION NO/S: | APL300-21 |
ORIGINATING APPLICATION NO/S: | MCDT70-21 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 4 November 2022 |
HEARING DATE: | 25 October 2022 |
HEARD AT: | Brisbane |
DECISION OF: | Member Richard Oliver |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FINDINGS OF FACT – where tenancy terminated because of objectionable behaviour – where applicant claimed outstanding rental and other costs in respect of a tenancy on termination – where the respondent counter-claimed for costs of accommodation, storage and kennel fees – whether the respondent was in arrears of rent – whether the costs of cleaning and change of locks was reasonable or necessary – whether it was reasonable for the respondent to vacate the premises while waiting for application for termination to be heard – whether compensation for alternate accommodation, storage and kennel cost were reasonably incurred – whether the findings of the tribunal at first instance open on the evidence – whether any basis to interfere with findings of fact – whether grounds for a grant of leave – whether any error of law or fact demonstrated. Queensland Civil and Administrative Tribunal Act section s 28, 29 and 142(3)(a)(i) Residential Tenancy and Rooming Accommodation Act ss 313, 362, 419, 420 and 429 Terera & Anor v Clifford [2017] QCA 181. Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22. |
APPEARANCES & | The parties appeared in person |
Background
- [1]The respondent, Mr Williamson and his then co-tenant Ms Ryan, entered into a residential tenancy agreement with the applicant, as managing agent, in respect of a rental house in Hemmant in January 2021. The agreement provided for weekly rental of $780.00/wk and was for a term of 12 months. An initial bond of $3,120 was paid.
- [2]The tenants had issues with the representative of the applicant, Mr Stebbings, and ultimately Ms Ryan moved out of the tenancy. Half the bond was repaid to her. That left Mr Williamson with the tenancy alone. The conflict continued with the applicant alleging Mr Williamson was in arrears of rent. This was in fact the case.
- [3]On 17 April 2021, the applicant gave Mr Williams a Notice to Remedy Breach for rental arrears. There is no dispute that he was in arrears at the time, even though a rental bond was with the Residential Tenancy Authority as security for rent and other expenses. When Mr Williamson failed to remedy the breach the applicant gave him a Notice to Leave. The date to vacate the premises pursuant to the Notice to Leave was 29 April 2021.
- [4]To avoid this being actioned Mr Williamson filed an urgent application in the tribunal to terminate the tenancy on the grounds of the applicant’s objectionable behaviour. The application was allowed on 6 May 2021 with the tenancy to terminate on 25 May 2021.
- [5]After Mr Williamson vacated the property the applicant filed an application in the minor civil disputes jurisdiction of the tribunal claiming arrears of rent, carpet cleaning cost, the cost of replacing the locks to the premises and a claim for yard maintenance. The only claim in the application itself was for $2,589.01 outstanding rental because the other costs incurred had been deducted from the balance bond of $1,560.00. The bond was released with Mr Williamson’s cosent.
- [6]When the application first came on for hearing on 23 September 2021, Mr Williamson had not filed a counter application. It would appear that he was intent on agitating a counter-claim so the tribunal made directions for him to file his counter application within 14 days of the order and the application was adjourned for hearing to 21 October 2021. He filed the counter-application but did not attach any of the documents that supported his counter-claim. Also he did not serve Mr Stebbings with the application until the night before the hearing. One of the applicant’s complaints is that Mr Stebbings, who represented the applicant, first saw the documents in support of the counter-claim at the resumed hearing.
Primary hearing
- [7]The matter proceeded to the hearing before a tribunal adjudicator on the 21st October 2021. After hearing from both parties the learned adjudicator found that there were no arrears of rent once the bond of $1,560.00 was taken into account. She dismissed the applicant’s claim for carpet cleaning because she accepted Mr Williamson had cleaned the carpet. She dismissed the claim for lawn mowing as she was satisfied that photographs produced by Mr Williamson did not demonstrate the lawn was in need of mowing at the time he vacated the property. She dismissed the claim for replacement locks because she found it was unnecessary to change the locks at the conclusion of the tenancy. Similarly, not all of the claim for excessive water usage had been established, but she allowed $200.00.
- [8]In respect of Mr Williamsons counter-application the learned adjudicator allowed $1,667.20 for temporary accommodation up until his application for termination was heard by the tribunal. She allowed dog kennelling in the sum of $800 as well as an allowance of $654 for storage of Mr Williamson’s possessions effectively for the month of May.
- [9]Offsetting the rental bond for rent and after allowing $200 for excess water, the learned adjudicator ordered that the applicant pay Mr Williamson the sum of $2,921.20.
Appeal
- [10]The applicant has filed an application for leave to appeal or appeal the primary decision. The grounds of appeal in the application are broad ranging starting with a complaint that at the initial hearing to commence on 23 September 2021, the respondent did not appear and that the adjudicator spoke to the respondent in the absence of a representative of the applicant by phone. The applicant also submits that upon the respondent’s failure to attend the initial hearing that day, default judgment should have been entered in favour of the applicant.
- [11]The applicant contends that the tribunal failed to take into account the “form 11s and 12” which were in the process of being actioned due to the respondent’s failure to pay rent. Further grounds were based on a denial of procedural fairness because the respondent did not comply with the direction to file his response by 8 October 2021. The response was filed but not the documents to support the counter-claim being the invoices for accommodation expenses, pet care and storage. Mr Stebbings described the response itself as “garbled and hard to read hand written allegations of not feeling safe and frightened to stay in the property”.
- [12]It is correct that the response was hand-written and a little difficult to read but that is not unusual in the tribunal. Importantly, the response sought relief under various sections of the Residential Tenancy and Rooming Accommodation Act 2008 (“RTRA”). In particular reference was made to s 313 relating to termination for objectionable behaviour, which the tribunal found occurred. Section 362 relates to a duty to mitigate loss. Section 419 which relates to obtaining an order concerning a breach and Section 429 which permits applications about a breach of an agreement. Importantly, under s 419 if a breach is found the tribunal can then consider compensation under s 420 which occurred here.
- [13]As to the grounds of appeal there seems to be some substance to the denial of procedural fairness in that the applicant did not receive all of the respondent’s material relied upon by the tribunal until the night before the hearing and could not print it. The learned adjudicator acknowledged this but on the basis of how the hearing was conducted and given that there was no dispute about the termination for objectional behaviour, she considered Mr Stebbings was sufficiently aware of the nature of, and basis for, the respondents claim. She considered this and decided there was no unfair advantage.
- [14]What seems to be clear from the transcript and the counter-application is that Mr Stebbings, although aware of what the counter-application sought, he was not aware of the amount specifically claimed until the day of the hearing. All the counter-application sought was:
I want the respondent to pay for costs as I did not feel safe in the house I was renting so then had to get another place to live and rent. I had to take my dogs to another place to stay as I did not feel safe leaving them at the house I want my moving costs paid for us as well and now have to move and find another place as I did not feel safe in that house no more as I had to move straight away.
- [15]Once there was a finding that Mr Williamson should be compensated under s 419 and 420 of the RTRA the question for the tribunal was whether the costs incurred were reasonable. Implicitly the learned adjudicator found they were. Even if the hearing was adjourned once Mr Stebbings was provided with copies of the invoices, one cannot see how his position could be improved because the fact was that the costs were incurred and the question for the tribunal was then whether they were as a result of a breach for objectionable behaviour and reasonable.
- [16]As this is an appeal brought under s. 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 in respect of a decision in a proceeding for 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 the error.[1] The appeal tribunal will not interfere with findings of fact which were open on the evidence before the decision maker.[2] However, it is necessary to ensure that the findings made are consistent with the evidence.
- [17]The applicant’s submissions in support of the application for leave to appeal are in the nature of a rehearing. At the hearing of the appeal Mr Stebbings appeared and again contested the calculation of rent. The rental ledger produced by the applicant at the primary hearing shows that at the conclusion of the tenancy on 25 May 2021 there was outstanding rent of $4,100.55. That figure is obviously correct because the ledger records all payments, even the payment of arrears accurred between 12 March 2021 and 2 April 2021 of $3,250.00 paid in two instalments of $1,560 on 19 and 20 April 2021. There were still water charges in arrears debited to the account on 3 March 2021 of $200.55.
- [18]A reconciliation of the rental debits and credits from the ledger shows there is a total of rent charged and payable of $14,040. There are credits totalling $12,480. This leaves an outstanding balance of $1,560.00. Allowing for the water charge up to 3 March 2021 there remains $1,760.55 on the rental ledger owing by Mr Williamson.
- [19]During the primary hearing, Mr Williamson has made spurious claims about the applicant keeping “two ledgers”, meaning as I understand the allegations, one is “off the books”. Mr Stebbings explained this saying one record is a “tenancy receipts report” and the other is the rental ledger. Clearly this is correct and there is no basis for making such serious and unfounded allegations.
- [20]Further debits were added to the ledger for the claims made for sundry items, locksmiths, carpet cleaning and mowing are removed there are no arears of rent. The bond of $1,560.00 was then credited to the ledger which creates some confusion. Ignoring these further claims for water because they were largely disallowed, save for $200.00, and the bond credit then the total entitlement of the applicant at the conclusion of the tenancy is $1,760.55.
- [21]To avoid confusion it is worth recording the following exchange between the leaned adjudicator and Mr Stebbings:[3]
Adjudicator: so what I’m saying is that according to this ledger, his rent was paid up to 6th May.
Mr Stebbings: yes
Adjudicator: which means there was two weeks – if I’m taking the exit date the 20th May.
Mr Stebbings: yeah
Adjudicator: there’s two weeks outstanding, which is 1560.
Mr Stebbings: yeah
Adjudicator: Okay. So now we’ve established that, we can go through the rest of your claim, then we will deal with the counter-claim. We are running out of time..
Mr Stebbings: Okay
- [22]That concession sits comfortably with the objective evidence. The objective facts demonstrate that at the conclusion of the tenancy Mr Williamson was indebted to the applicant in the sum of $1,760.55. In addition to that is the further water charge allowed by the tribunal. Therefore the applicant’s challenge to outstanding rent has no basis.
- [23]As to what I have referred to as the sundry items, the learned adjudicator made findings of fact about whether the applicant should be compensated by a consideration of the evidence before her. Cleary her conclusions were open on that evidence and it is not for this appeal tribunal to interfere with those findings. It would be contrary to principle to do so . As the High Court (French CJ, Bell, Keane, Nettle and Gordon JJ) said in Robinson Helicopter Company Incorporated v McDermott:[4]
A court of appeal conducting an appeal by way of rehearing is bound to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony”, or they are “glaringly improbable” or “contrary to compelling inferences”. In this case, they were not. The judge’s findings of fact accorded to the weight of lay and expert evidence and to the range of permissible inferences.
- [24]As for the counter-application the applicant, apart from the procedural fairness point, challenges the basis upon which the tribunal allowed the claims for accommodation storage and kennelling. There is some substance to that challenge.
- [25]Firstly, the accommodation costs were incurred before any order was made about objectionable behaviour. That occurred on 6 May 2021. The accommodation was between 26 April 2021 and 3 May 2021. This was after the arrears of rent had been paid up to date and Mr Williamson was entitled to continue to reside in the rental property. Therefore, despite Mr Williamson feeling concerned about further conflict with Mr Stebbings, and at the suggestion of the police, there was no legal justification for him not staying at the rental property.
- [26]Up until 6 May 2021 there was a contested dispute about rental arrears and as at the date of Notice to Remedy Breach for non-payment of rent 17 April 2021, the rent was in arrears. The arrears were not paid up to date until 19 April 2021 and 20 April 2021. The breach had been remedied so the Notice to Leave was of no effect. A new invoice for rent is recorded on 30 April 2021 for the period from 14 May 2021 to 20 May 2021 and Mr Williamson paid that on 5 May 2021. This entitled him to stay in the premises until at least 20 May 2021.
- [27]However, given the circusmtances pertaining at the time of the dispute, the tribunal found that Mr Williamson’s conduct in seeking alternate accommodation at Peppers until there was a determination of his application for termination was reasonable. It found that the amount of compensation claimed of $1,667.20 was also reasonable for objectionable conduct under the RTRA. Again, such a conclusion was open on the evidence and there is no basis to interfere with that finding in the appeal.
- [28]The claim for storage is another matter. The storage costs claimed are for between 7 May 2021 and 6 June 2021. His temporary accommodation finished on 3 May 2022. The storage invoices indicate that the total cost was $654.00. Mr Williamson, at all times, had access to the rental property to store his personal items. In fact he moved back to the property after the temporary accommodation. It does not follow that this sum is compensable in the circumstances. The learned adjudicator erred in not taking this into account.
- [29]As for the kennelling costs similar considerations apply. The invoice shows the cost from 20 April 2021 through to 6 May 2021. The animals were already in care before Mr Williamson decided to vacate the premises. There was no examination of this issue at the hearing and it proceeded simply on the basis that the animals had to be looked after while Mr Williamson was staying at Peppers. It seems, irrespective whether he was there or not, the dogs would have been in care because they had already been there for a week or so. Without further explanation as to why this was the case this claim should not have been allowed.
- [30]Therefore the total counter-claim is reduced to $1,667.20 being the temporary accommodation only.
- [31]In respect of the procedural fairness, it would appear at first blush that the applicant was denied procedural fairness by not being supplied with the invoices before the hearing. However, in the end it would have made little difference to the conduct of the case when what the respondent sought was articulated in the application.
- [32]As for failing to enter default judgment on Mr Williamson failure to appear, it must be borne in mind that tribunal adjudicators and members have specific obligations to assist parties under sections 28 and 29 of the Queensland Civil and Administrative Tribunal Act 2009 to ensure parties understand the processes of the tribunal so proceedings can be conducted fairly. It is unfortunate that the discussion with Mr Williamson was in the absence of the applicant representative, if that is what occurred, however by adjourning the proceeding and making directions ensured there was fairness to both parties. This is not a ground which warrants leave to appeal.
Summary
- [33]In the circumstances there will be leave to appeal. Having regard to the evidence before the tribunal at first instance I have concluded that error has been demonstrated. I propose to set aside the decision of 21 October 2021 and substitute the following orders.
- [34]The respondent must pay to the applicant the sum of $1,960.55. The applicant must pay to the respondent the sum of $1,667.20.
- [35]As the applicant has the benefit of the bond of $1,560.00 only $400 is payable by the respondent. This sum deducted from the respondent’s entitlement means the net result is is that the applicant must pay to the respondent the sum of $1,267.20.