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Wellington Point First National Real Estate v Tate[2022] QCATA 58

Wellington Point First National Real Estate v Tate[2022] QCATA 58

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Wellington Point First National Real Estate v Tate & anor [2022] QCATA 058

PARTIES:

WELLINGTON POINT FIRST NATIONAL REAL ESTATE

(applicant\appellant)

v

PAUL TATE & sharon cox

(respondents)

APPLICATION NO/S:

APL051-21

MATTER TYPE:

Appeals

DELIVERED ON:

26 April 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

Leave to appeal is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where owner contended the tenants had caused blockage of the drainage system in the residential property – where managing agent for the owner sought to recover the costs of clearing the drains – where the tenants contends the drains were not blocked when they vacated the premises – where tribunal accepted the evidence of the tenants – whether it was open for the tribunal to accept the tenants evidence in preference to that of the owner’s managing agent – whether any error of law or fact demonstrated.

Queensland Civil and Administrative Tribunal Act section 142(3)(a)(i)

Terera & Anor v Clifford [2017] QCA 181

Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22.

Bradlyn Nominees Pty Ltd v Saikowski [2012] QCATA 39.

APPEARANCES &

REPRESENTATION:

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. [1]
    Wellington Point First National was the managing agent (“managing agent”) for a residential property in Gumdale rented by Mr Tate and Ms Cox (“the tenants”). The tenants decided to vacate the property at the end of the tenancy on 24 October 2020. There did not appear to be any issues with vacating the property and a final inspection was carried out by the owner with the tenants present.
  2. [2]
    After the property was vacated the owner decided to clean the waste water drains from the house however encountered problems with blockages in the drains. The owner engaged a plumber to clear the drains and incurred a cost of $665.00. The invoice was sent to the tenants who refused to pay on the basis that blockages, if any, were not caused by them and at all times during the tenancy they experienced no problem with the drains. On the basis of this dispute the bond was not released from the Rental Bond Authority.
  3. [3]
    On 27 November 2020 the managing agent filed an application for Minor Civil Dispute jurisdiction of the tribunal claiming a total of $736 compensation on behalf of the owner which included the $70.50 QCAT application fee.
  4. [4]
    The application came on for hearing before an adjudicator on 28 January 2021. The managing agent was represented by Ms O'Neill with Mr Tate representing the tenants. Essentially, the managing agents position was that it had been advised by the owner that the drains had been cleaned soon after the commencement of the tenancy and the only reasonable conclusion is that the blockages were caused by the tenants. No evidence was provided by the plumber who cleared the drains nor was there any direct evidence called from the owner as to his involvement in clearing the drains as asserted by the managing agent.
  5. [5]
    Mr Tate's evidence was succinct and to the point in that he told the tribunal that during the tenancy they had no difficulties with the drains. Furthermore he refuted the assertion that the owner had been to the property to clean the drains, either at the commencement of tenancy or during it. The learned adjudicator raised the issue of normal wear and tear where drains can be blocked and require maintenance however, this could not be addressed by the managing agent and neither the owner nor the plumber we're available to give evidence.
  6. [6]
    In the end the tribunal was left with conflicting evidence. In the absence of any evidence from the managing agent as to the cause of the build-up of grease and oil in the drain, the learned adjudicator could not be satisfied as to whether the blockage was caused by the tenant or just a maintenance issue that developed overtime. She accepted the evidence of Mr Tate, which was open for her to do having regard to all of the evidence that was presented at the hearing. She dismissed the application
  7. [7]
    On 4 March 2021 the managing agent filed an application for leave to appeal or appeal the tribunal's decision. The grounds of appeal are:

The grounds of appeal are based on the owner before tenants (sic) moved in on 27/10/2018 the kitchen sink had a build-up of grease and fat which the owners had cleaned, since then the tenants vacate on 24/10/2020 things had been placed down the drain resulting in grease and fat build up over this two years.

  1. [8]
    The grounds of appeal reflect the very issue of fact that the learned adjudicator had to decide at the hearing of the original application. The grounds do not identify any error of law or fact other than a different outcome his sought.
  1. [9]
    It is against this background that an appeal from a decision in the minor civil disputes jurisdiction must be considered. Such an appeal is not an appeal as of right. Section 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides that in respect of a decision in a proceeding for a minor civil dispute an appeal may be made only if the party has obtained the appeal tribunal’s leave to appeal. Leave to appeal will usually only be granted when there is a reasonable argument that the decision was attended by error, or an appeal is necessary to correct a substantial injustice caused by the error.[1]. 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.[2] Put another way, it is not a rehearing on the merits of the matter that was before the primary decision maker/s. As already mentioned, the grounds of appeal do not specifically identify error on the part of the learned adjudicator but essentially argues that the case that was argued below ought to have reached a different conclusion.
  1. [10]
    Furthermore, the learned adjudicator was presented with the evidence from the managing agent as to what the owner had told her, based on what the plumber had told the owner. Although the rules of evidence do not strictly apply in the tribunal, the evidence as to the condition of the drain was hearsay upon hearsay. Furthermore, the evidence that the owner cleaned the drain at the commencement of the tenancy was also hearsay. This does not mean the hearsay evidence cannot be accepted however, the tribunal is entitled to weigh this evidence up as against the direct evidence presented by Mr Tate. The learned adjudicator gave clear and concise reasons for accepting Mr Tate’s evidence. If it was open for the tribunal to accept the evidence of Mr Tate, as clearly it was here, it is not for the appeal tribunal to interfere with her findings of fact.[3] Simply being dissatisfied with the acceptance by the tribunal of the evidence of one party in preference to the evidence of the other party, is not an error of law which would warrant a grant of leave.
  1. [11]
    As no error has been demonstrated by the managing agent in this appeal, and there has been no substantial injustice, leave to appeal is refused.

Footnotes

[1] Terera & Anor v Clifford [2017] QCA 181.

[2] Bradlyn Nominees Pty Ltd v Saikowski [2012] QCATA 39.

[3] Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22, [43].

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Editorial Notes

  • Published Case Name:

    Wellington Point First National Real Estate v Tate & Anor

  • Shortened Case Name:

    Wellington Point First National Real Estate v Tate

  • MNC:

    [2022] QCATA 58

  • Court:

    QCATA

  • Judge(s):

    Member Richard Oliver

  • Date:

    26 Apr 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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