Nuvaqi Gold Coast Property Expo v Ross
[2022] QCATA 98
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- Unreported Judgment
- Nuvaqi Gold Coast Property Expo v Ross[2022] QCATA 98
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Nuvaqi Gold Coast Property Expo v Ross[2022] QCATA 98
Nuvaqi Gold Coast Property Expo v Ross[2022] QCATA 98
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Nuvaqi Gold Coast Property Expo v Ross [2022] QCATA 98 |
PARTIES: | Nuvaq/gold coast property expo (applicant\appellant) v donald arthur ross (respondent) |
APPLICATION NO/S: | APL357-20 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 5 June 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 – LEAVE TO APPEAL – CONTROL OVER PROCEEDINGS – PROCEDURAL FAIRNESS where the respondent entered into a residential tenancy agreement with the applicant as agent – where the respondent relied on a representation as to the use of a study as a bedroom by the applicant’s agent – where in fact the use of the study as a second bedroom was not permitted – where the respondent rescinded the agreement on the grounds of innocent misrepresentation – whether the respondent’s evidence of the representation being made was hearsay – whether the evidence otherwise supported a finding that the representation was made – whether the representation was material and induced the respondent to enter into the tenancy agreement – whether the evidence supported the finding of the representation having been made. Queensland Civil and Administrative Tribunal Act ss 28(30(b), 139(5) and 142(3)(a)(i) Terera & Anor v Clifford [2017] QCA 181. Bradlyn Nominees Pty Ltd v Saikowski [2012] QCATA 39. Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404. Brose v Arnold [2020] QCA 162 Macquarie Generation v Peabody Resources [2001] NSWCA 361 |
REPRESENTATION & APPEARANCES: | 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]This is an appeal from a decision of the Tribunal in the minor civil disputes jurisdiction concerning a residential tenancy agreement between the above parties. The applicant is the managing agent of a rental property at Ferny Avenue, Surfers Paradise. It is a one bedroom home unit with a separate study. The respondent, Mr Ross, signed a residential tenancy agreement in respect of the home unit on 24 December 2019 for a fixed term ending on 12 January 20212.
- [2]Mr Ross says prior to signing the agreement he inspected the unit with the agent for the applicant, Mr Hogan, and was told that the study could be used as a second bedroom. This was important to Mr Ross because he informed Mr Hogan that he required a second bedroom for his partner’s daughter who would be staying with them for about three nights a week while studying at the Gold Coast during the year. After moving into the unit, he applied to the applicant for a third key for his partner’s daughter only to be refused. He was told that as the unit was only one bedroom, three people were not allowed to reside there. After being told Mr Ross terminated the tenancy agreement. Mr Ross relies on the misrepresentation, by Mr Hogan, as a valid ground for terminating the tenancy agreement.
- [3]On vacating the home unit, the applicant withheld the bond, sought to recover outstanding rent, break lease fee, cleaning, advertising and damages for loss of rental. Mr Ross accepted he was liable for outstanding rent but disputed the applicant’s other claims. After hearing from the parties, in considered reasons the learned adjudicator allowed part of the applicant’s claim, and after taking into the account the bond of $2,280 ordered Mr Ross to pay to the applicant $2,152.77.
- [4]Subsequently the applicant filed an application for leave to appeal or appeal. In the grounds of appeal it contends, in summary, that the learned adjudicator fell into error by; firstly accepting Mr Ross’s evidence of the conversation on the basis that it was hearsay and should have been disregarded; failing to have regard to the provisions of the Residential Tenancy and Rooming Accommodation Act when it was found Mr Ross had abandoned the rental; and failed to examine the validity of the evidence relied on by Mr Ross with respect to costs he incurred in alternate accommodation. The applicant’s submission filed in support of the appeal elaborate on the above grounds which will be addressed further below.
- [5]As this is an appeal from a decision in the minor civil disputes jurisdiction it 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.
- [6]As mentioned above, the central issue is whether there was a misrepresentation. In respect of that issue it is helpful to record the evidence given by Mr Ross at the hearing below:
The basis is when I first looked at the premises was with my partner and her daughter. And Mr Brendan Hogan show us the property. And he said this is a one-bedroom and a study, which is easily converted to another bedroom. In fact, the second room had a bed in it ready for occupation for somebody to sleep in it. We mentioned to him that it was just purely for the two of us to start with, my partner and I, but in the months to come we would require my partner’s daughter to stay for three nights a week, because she was learning English. She’s from Colombia – learning English at the English school on the Gold – Surfers Paradise. He said, “That’s not a problem”. He said, “just apply for an extra key when you require that”. And so when we applied for a second key, they said “yes, that’s okay. Fill out an application form” so Claudia filled out ta complete application form, including her ID and bank statements, etcetera, and they the key was rejected saying, “no. We – it’s only a one-bedroom apartment” when, in fact all the advertising that this company do – in fact, even this morning, I got an email [indistinct] from the same company with an identical advertising its : …study, but easily converted to a second bedroom.
- [7]There was no dispute that Mr Hogan was the authorised agent for the applicant. He was not called to give evidence. The applicant contends that the tribunal should disregard the evidence of the conversation between Mr Ross and Mr Hogan because it is hearsay. There are two things to say about that contention, firstly; it is clearly not hearsay as Mr Hogan was representing the managing agent, the applicant and secondly; even it if was hearsay the Tribunal is not bound by the rules of evidence which apply in the courts[3]. Therefore it was open for the learned adjudicator to accept Mr Ross’s evidence on this point in the absence of any evidence to the contrary about what was discussed.
- [8]With respect to the advertisement about converting the study to a bedroom, this is taken up in ground one of the applicant’s submission. The applicant quite rightly pointed out that the advertisement was in relation to the sale of a home unit and not a rental. The learned adjudicator accepted the distinction and placed no additional weight on the advertisement to support the representation made by Mr Hodges. The applicant contends that because Mr Ross sought to raise this in support of his case, it was misleading, impacted his credibility, and therefore his evidence should have been ignored. Despite that the Tribunal was still entitled to rely on the uncontested evidence of Mr Ross concerning what was said to him by Mr Hodges.
- [9]Ground two of the submissions contends that the Tribunal failed to have regard to the conversation between Ms Latter, the agent dealing directly with Mr Ross in preparing and signing the rental documents concerning occupancy. In that conversation Mr Ross was informed of the need for any person over the age of 18 who intends to reside in the property to be on the application before an additional key is provided. Ms Latter sets out the evidence relied upon in her submission. As a result Mr Ross included his partner on the application but not his stepdaughter. Had he included his step-daughter, it is contended, he would have been made aware then that an extra key would not have been provided nor would she be allowed to reside in the unit.
- [10]Mr Ross does not directly dispute the conversation with Ms Latter but it was not made clear to him that the occupancy of the unit was limited to two adults. That is consistent with the evidence as recorded in paragraph 15 of the applicant’s submission. The point here is that at the time of the conversation, Miss Latter was unaware of the representation made by Mr Hodges so the conversation was somewhat general and not specific as to the number of people who could occupy the unit. Ms Latter submits that Mr Ross should have realised then that an extra key would be problematic whereas Mr Ross, based on the representation, did not see it as an immediate problem because he could follow the
- [11]Finally, the applicant submits that Mr Ross failed to address Ms Latter’s conversation with him prior to the entry of the lease contract on 24 December 2019 that she was “very clear to Mr Ross that anyone over the age of 18 must apply upfront in order to be approved to reside in the property…..he made no mention of his partner’s daughter”. Again, having regard to the content of the representation and the information provided to Mr Hodges that his partner’s daughter would only reside there for three nights/wk when her English course started, it is not surprising that this was not mentioned when signing up for the lease. There was no immediate need for an extra key, and it was not until late January until the application was made and rejected. Therefore it was entirely reasonable for the Tribunal to place little weight on this evidence.
- [12]In ground 3 the applicant contends that the Tribunal erred in not taking into account Ms Latter’s evidence that it was permissible for Mr Ross to accommodate a guest/visitor as long as it was not a “full-time arrangement”. The evidence relied upon is in paragraph 24 of the applicant’s submission. That may well be the case, and it certainly makes sense, however that does not reflect what Mr Hodges said to Mr Ross. The Tribunal, rightly had regard to the evidence of Mr Ross, accepted that the representation was made, Mr Ross relied on it and was induced to then enter into the tenancy agreement. There is no evidence put forward to gainsay that conclusion. By refusing to issue a third key for Mr Ross’s step-daughter demonstrated that the representation by Mr Hodges would not be honoured despite the fact that it could be used as a bedroom on a casual basis. Once again, the submission fails to identify any error on the part of the learned adjudicator having regard to the evidence before him.
- [13]Ground 4 of the applicant’s submission goes to the failure of the Tribunal to have regard to all of the evidence and come to a decision in the applicant’s favour. What the applicant fails to appreciate is that the appeal is not a rehearing of the original application. It must demonstrate that the conclusion reached by the learned adjudicator was simply not open on the evidence that was given both orally and in the documents tendered at the hearing. It is not for the appeal Tribunal to decide the matter afresh even though it might come to a different decision.
- [14]The transcript of the hearing demonstrates that the learned adjudicator gave careful consideration to all of the evidence presented and queried some of the evidence given where necessary. Having accepted the uncontracted evidence from Mr Ross, it was open for him to find that that Mr Hodges made a representation, albeit innocent, as to the use of the study as a second bedroom. He accepted the representation was material and induced Mr Ross to enter into the tenancy agreement.[4] The remedy available for innocent misrepresentation is recission of the contract, here the tenancy agreement. Damages are not recoverable, and none were awarded, despite Mr Ross’s claim for the cost of alternate accommodation for his daughter and relocation costs.
- [15]The analysis undertaken by the learned adjudicator when assessing the claims by either party also demonstrates attention to detail and ensuring fairness to both parties as is the remit of the QCAT Act.
- [16]In the end and consistent with the principles of leave to appeal, no error of law or fact has been established to warrant a grant of leave. Also, it is relevant to observe what the Court of Appeal said in Brose v Arnold [2020] QCA 162 at [9]:
It is not sufficient in every case for an applicant for leave to point to an arguable ground of appeal. In Praxis Pty Ltd v Hewbridge Pty Ltd [2004] 2 Qd R 433; [2004] QCA 79, at [12], this Court held that “the fact that an error of fact or law arguably has occurred in the reasons leading to the judgment is not necessarily enough: if it were, there would be no point in imposing the additional requirement of obtaining leave to appeal.”
- [17]Leave to appeal is refused.