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ManageMe Property Management Solutions v Inak[2023] QCATA 132

ManageMe Property Management Solutions v Inak[2023] QCATA 132

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

ManageMe Property Management Solutions & Anor v Inak & Anor [2023] QCATA 132

PARTIES:

ManageMe Property Management Solutions and Prudence Carroll

(applicants/appellants)

v

bulent inak and skye inak

(respondents)

APPLICATION NO:

APL 137–22

ORIGINATING APPLICATION NO:

182/22

MATTER TYPE:

Appeals

DELIVERED ON:

16 October 2023

HEARD AT:

Brisbane

DECISION OF:

Senior Member Traves

Member Scott-Mackenzie

ORDER:

The application for leave to appeal is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – where applicants sought to adduce new evidence on appeal – where directions  for application to adduce new evidence on appeal – where applicants failed to comply with the directions – test for adducing new evidence on appeal – whether application would have been granted if made – where directions  for submissions on grounds for leave to appeal – where applicants failed to comply with the directions – test for leave to appeal – whether grounds of application for leave to appeal satisfy test –– whether appropriate findings of fact made – whether findings open on evidence – whether grounds to grant leave to appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142, s 147, schedule 3

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 302, s 325

Australian Alliance for Energy Productivity Ltd v Engineroom Infrastructure Consulting Pty Ltd [2023] QCATA 106

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404

Langdale v Dalby (1982) 3 All ER 129

Rintoul v Queensland [2018] QCA 20

Terera v Clifford [2017] QCA 18

Thang Long Pty Ltd v CTS Sunstate Group Pty Ltd [2022] QCATA 18

APPEARANCES & REPRESENTATION:

This matter was heard and decided on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

Application for leave to appeal and appeal

  1. [1]
    On 20 April 2022 the applicants made application to the appeal tribunal for leave to appeal against the decision and orders of the tribunal hearing the proceeding, given on 18 March 2023.  The decision is in the following terms:
  1.  Prudence Carroll is joined as an Applicant/Respondent to the Counter-Application.
  1.  The Applicants request for an adjournment is refused.
  1.  The Residential Tenancies Authority pay out to the parties the sum of $1,800.00 rental bond as follows: Lessor: Nil Tenants: 1,800.00.
  1.  The application filed on 8 February 2022 is dismissed.
  1.  The Applicants pay to the Respondents the sum of $5074.77 representing $4,897.27 for hotel accommodation, $50.00 for Interest on removal expenses brought forward, and $127.50 for filing fee.
  1.  QCAT Registry email these orders to the parties.

(original decision)

  1. [2]
    As is common in applications for leave to appeal and appeal, the grounds are contained in the one document.  Those grounds are couched in the following terms:

The information provided in the application shows the home was fit to live in as per the entry condition report.  The tenant lease started on the 23.12.2022 and they arrived on the 05.01.2022.  The photos that the tenants have provided in the counter application are of a home that sat vacant for 13 days.  Over this period it was summer and the humidity at this time was high.  The home was kept locked up with no air flow, tenants were responsible for the home during this time.  The issues surrounding mould, the photos show the amount of mould present, along the shower wall and in the dishwasher.  It was rectified within the breach notice period received from the tenants.  The exit report from the previous tenants show the home was in a good condition and free of mould.  We could not relet the home due to tenants belongings inside.  We could not mitigate the owners loss or the tenants loss.  The Form 11 from the tenants states the home is not clean; the tenant were responsible for this property from the 23.12.2022.  Tenants returned the keys on the 28.01.2023.  We believe when these tenants arrived to the home, they did not like it hence the course of they took.  The form 11 they issued was rectified however they still chose to issue a Form 13 and vacate.  Hence the Break lease fees and advertising.  New tenant found on 16.03.2022 (grounds of the appeal).

  1. [3]
    The grounds of appeal assert errors of fact.  They may be summarised in the following terms:
    1. the premises were fit to live in at the start of the tenancy;
    2. the premises and inclusions were in good repair at the start of the tenancy;
    3. the breach of the tenancy agreement asserted in a notice to remedy breach given by the respondents to the first applicant was remedied by the day stated in the notice; and
    4. the respondents were not entitled give a notice of intention to leave.
  2. [4]
    The applicants filed with the application for leave to appeal and appeal an exit condition report on the condition of the premises at the end of the previous tenancy dated 17 December 2021 (new evidence).  The report is new evidence in the sense it was not filed in the tribunal hearing the proceeding or tendered in evidence at the hearing.

Background

  1. [5]
    The first applicant is the agent for the property at unit 2, 4 Melanie Place, Labrador (premises).  The second applicant, who was joined as an applicant to the proceeding, is the owner of the premises.
  2. [6]
    On 23 November 2021 the second applicant and respondents entered into a residential tenancy agreement in respect of the premises (tenancy agreement).  The respondents lived interstate and did not inspect the premises prior to the start of the tenancy because of travel restrictions consequent on the COVID–19 pandemic.
  3. [7]
    The tenancy started on 23 December 2021 and ended on 21 December 2022.  The respondents were given the keys to the premises on 5 January 2022.  However, they did not personally enter into occupation of the premises then, or indeed at all, because of, as they asserted, the condition of the premises and their daughter’s medical condition.
  4. [8]
    On 13 January 2022 the respondents gave to the first applicant a notice to remedy breach under section 325 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act) (notice to remedy breach).  The details of the breach in the notice are in the following terms:

Breach of section 185:

  1. Premises are not clean
  2. Premises not fit to live in – mould
  3. Premises are not in good repair – holes in ceiling
  4. Breach of health & safety – mould
  1. [9]
    The date by which the first applicant was required to remedy the breach stated in the notice is 20 January 2022.
  2. [10]
    Then, on 21 January 2022, the respondents gave to the first applicant a notice of intention to leave under section 302 of the RTRA Act for “unremedied breach” (notice of intention to leave).  The handover day stated in the notice is 28 January 2022.

Original application

  1. [11]
    On 8 February 2022 the first applicant made application to the tribunal for an order that the respondents pay to it $2,050.71 (original application), calculated as follows:

Reletting fee $  495.00

Advertising fee $  220.00

Rent $  835.71

Bond clean $  500.00

$2,050.71

  1. [12]
    The reasons why the order should be made, in paragraph 4 of part E of the original application, are in that the following terms:

Tenant has breached lease agreement, they issued a breach for section 185 and then a notice to leave as breach was not rectified, we dispute the breach, her notice of intention to leave and claim on the bond, tenant had claimed bond and we have disputed and no resolved dispute with RTA, we seek compensation for the owner of break lease fee, advertising and a full bond clean and rent up until a new tenant moves in.

  1. [13]
    The first applicant filed with the original application the following documents:
    1. tenancy agreement;
    2. notice to remedy breach;
    3. notice of intention to leave;
    4. entry condition report dated 5 January 2022;
    5. invoice first applicant to the respondents dated 21 January 2022 for the advertising fee;
    6. invoice first applicant to the respondents dated 21 January 2022 for the reletting fee;
    7. notice of unresolved dispute dated 1 February 2022;
    8. quotation Jim’s Cleaning (Pacific Pines/Monterey Keys) to the first applicant dated 8 February 2022 for a bond clean;
    9. quotation Peter Hatfield Plumbing to the first applicant dated 7 February 2022 for repair of cracked tiles causing water leaks in the kitchen and bathroom;
    10. photographs;
    11. tenancy ledger;
    12. invoice Bob the Plumber GC Pty Ltd to the first applicant dated 9 February 2022;
    13. email first applicant to Bob the Plumber GC Pty Ltd sent 10 January 2022; and
    14. email second respondent to the first applicant sent 6 January 2022.

Counter-application

  1. [14]
    On 8 March 2022 the respondents filed a counter-application (counter-application) claiming:

Repayment of rental bond $1,800.00

Hotel accommodation $4,897.27

Removalist’s costs $  943.80

Refund of rent $1,125.00

$8,766.07

  1. [15]
    The reasons for the counter-application, in part E, are in the following terms:

We believe we did not break our lease agreement.  We notified ManageMe of the issues we had found with the property via phone and email while doing the entry report and received minimal contact and action.  Our 5 year old child has underlying health conditions and the state of the property posed a significant health risk to her.  We had advised ManageMe with our child’s condition and that we could not stay in the property until the issues were rectified and the matter was urgent.  The issue was not rectified.  Then on advice from RTA and QSTARS we issued a mutual termination letter and a Form 11 for breach of section 185.  Then we issued a Form 13 notice to vacate with grounds for an unremedied breach.  The issue was still not rectified.  As such we believe our lease agreement should be terminated without penalty.  We also had conciliation with RTA with no resolution.  We dispute the fees being charged and the claim on our bond for these reasons.  We also dispute the bond clean quote as we only had access to the property for 3 weeks and did not stay at the property at all during this time.  We left the property clean and undamaged.  We seek compensation for our out of pocket expenses for hotels, removalist and half of rent paid.

  1. [16]
    The respondents filed with the counter-application several documents. They included:
    1. an affidavit by the first respondent sworn 9 March 2022;
    2. a timeline of events;
    3. several photographs said to have been taken at the time the respondents vacated the premises;
    4. email correspondence passing between the respondents and the first applicant between 13 December 2021 and 4 February 2022;
    5. an open letter from Dr Philip Vuong dated 8 January 2022 to the effect the respondents’ daughter’s medical condition is exacerbated by mouldy domestic conditions; and
    6. invoices for hotel accommodation and removalist’s costs.
  2. [17]
    In the affidavit, the first respondent deposes to finding mould and water damage on first entering the premises, email correspondence with the first applicant and the giving of the notice to remedy breach and notice of intention to leave.

Hearing

  1. [18]
    The original application and counter-application were heard by the tribunal on 18 March 2022.
  2. [19]
    Ms Dank appeared on behalf of the applicants, by telephone.  The respondents were self-represented, again by telephone.  They gave sworn evidence.
  3. [20]
    Ms Dank stated in evidence the mould and water damage were reported on 10 January 2022 and actioned the following day.  She was unable to provide the tribunal with evidence of the mould having been removed.
  4. [21]
    The second respondent stated in evidence she and her husband, the first respondent, and daughter were in hotel accommodation from 6 January 2022 until 26 January 2022.  The respondents collected the keys to the premises on 5 January 2022.  The mould was not removed prior to the keys being returned to the first applicant.
  5. [22]
    The first applicant was told about the presence of mould and the water damage on 6 January 2022, the second respondent stated in evidence.  A plumber inspected the premises on 10 January 2022.
  6. [23]
    There was discussion between the learned Adjudicator and second respondent concerning the claims for removalist’s costs and the refund of rent.
  7. [24]
    The premises, the second respondent stated in evidence, has remained vacant since the keys were returned until a few days prior to the hearing with work having been carried out to the premises.
  8. [25]
    Ms Dank again gave evidence the breach specified in the notice to remedy breach was remedied by the day specified in the notice.  A bond clean, Ms Dank conceded, was not carried out.

Reasons for decision

  1. [26]
    In his reasons for decision, the learned Adjudicator accepted the evidence of the respondents that there was mould present in the premises at the start of the tenancy which was not remedied by the date specified in the notice to remedy breach.  The notices, the Adjudicator held, were properly given by the respondents to the first applicant, bringing the tenancy agreement to an end.
  2. [27]
    He accepted the respondents’ evidence their daughter’s medical condition is aggravated by mould.
  3. [28]
    The learned Adjudicator allowed the respondents’ claim for hotel accommodation ($4,897.27) but disallowed the claim for a refund of rent given the allowance for hotel accommodation.  He allowed a nominal sum, $50.00, for interest on the removalist’s costs brought forward and the filing fee on the counter-application, $127.50.
  4. [29]
    The original application was dismissed.

Legislation

  1. [30]
    Section 142(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) provides that a party to a proceeding may appeal to the appeal tribunal against a decision of the tribunal in the proceeding if a judicial member did not constitute the tribunal in the proceeding. An appeal under the section against a decision in a proceeding for a minor civil dispute may be made only if the party has obtained the appeal tribunal’s leave to appeal.[1]
  2. [31]
    This proceeding is a proceeding for a minor civil dispute.[2]
  3. [32]
    An appeal under section 142(1) on a question of fact, or a question of mixed law and fact, may be made only if the party has obtained the appeal tribunal’s leave to appeal.[3]
  4. [33]
    An appeal against a decision on a question of fact only or a question of mixed law and fact must be decided by way of rehearing, with or without the hearing of additional evidence as decided by the appeal tribunal.[4]
  5. [34]
    This appeal is an appeal on a question of fact.  It may be made only if the applicants have obtained the appeal tribunal’s leave to appeal.

Directions

  1. [35]
    On 8 June 2022 the appeal tribunal, under the heading “APPLICATION FOR LEAVE TO APPEAL OR APPEAL”, directed as follows:
  1.  ManageMe Property Management Solutions and Prudence Carrol must file in the Tribunal two (2) copies and give to Bulent lnak and Skye lnak one (1) copy of:
  1.  all submissions detailing the alleged error/s of fact and/or law made by the original decision maker; and
  1.  any further submissions in support of the application for leave to appeal or appeal that they wish to rely upon, or advise that no further material will be filed, by:

4:00pm on 8 July 2022.

  1.  Bulent Inak and Skye Inak must file in the Tribunal two (2) copies and give to ManageMe Property Management Solutions and Prudence Carrol one (1) copy of all submissions in reply by:

4:00pm on 29 July 2022.

  1.  (a) If any party seeks leave to rely upon evidence or a document that was not before the Tribunal below (‘fresh evidence’), they shall file in the Tribunal one (1) copy and serve on each other party one (1) copy of an application for leave to rely upon fresh evidence, together with a copy of the fresh evidence.  The application shall include submissions about:

i. why the fresh evidence was not available to the Tribunal below;

ii. why the fresh evidence is important; and

iii. why the fresh evidence should be accepted.

  1.  If an application for leave to rely upon fresh evidence is filed, any other party may file and serve written submissions in response within 21 days of the application for leave to rely upon fresh evidence is filed.
  1.  Unless otherwise ordered, any application for leave to rely upon fresh evidence will be heard and determined together with the application for leave to appeal/appeal.
  1.  Unless any party files an application for an oral hearing by 4:00pm on 5 August 2022, the application for leave to appeal and the appeal (if the application for leave to appeal is granted) will be determined on the papers.
  1. [36]
    The applicants did not file submissions in accordance with direction 4(b), informing the appeal tribunal on 8 July 2022 that they did not intend filing further material.  Further, they did not file an application for leave to rely on new evidence together with copies of the new evidence in accordance with direction 6(a).  Notwithstanding the applicants’ non-compliance with the directions, the respondents, after being granted extensions of time to do so, on 10 November 2022 filed submissions addressing the proceeding generally, objecting to the applicants relying on the new evidence and drawing attention to the applicants’ failure to identify errors on questions of fact, or questions of mixed law and fact, made by the tribunal.

Discussion

New evidence

  1. [37]
    The exit condition report on the condition of the premises at the end of the previous tenancy dated 17 December 2021 filed with the application for leave to appeal and appeal, as we have said, is new evidence.  It was available to the applicants at the time of the hearing of the proceeding.
  2. [38]
    The applicants were afforded an opportunity to make application to the appeal tribunal for leave to adduce the new evidence.  They did not to do so.
  3. [39]
    In the circumstances, the new evidence will not be accepted.
  4. [40]
    Even if the applicants had made application to the appeal tribunal for leave to adduce the new evidence, the application would have been refused.  Whether new evidence is admitted is a matter of discretion.  While the rules of evidence do not apply in the tribunal, the appeal tribunal proceeds on the basis that the usual tests for new evidence must be met for such evidence to be admitted on appeal under section 147(2) of the QCAT Act.  In Clarke v Japan Machines (Australia) Pty Ltd[5] it was said that there are three conditions to be met for new evidence to be received on appeal: 

First it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive: third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.[6]

  1. [41]
    More recently, in Thang Long Pty Ltd v CTS Sunstate Group Pty Ltd[7], the appeal tribunal observed:

[11] Permission to introduce post-trial evidence is not given lightly.  Finality of litigation is a firm policy of the law, particularly in tribunals where the legislature expects proceedings to be relatively simple and expeditious.  Indeed the legislative purpose of the QCAT Act’s leave-to-appeal provision is to ensure that the primary decision will normally be final.  Trials are not practice sessions or preliminary skirmishes to be followed by more carefully considered re-runs with the benefit of afterthoughts.  Unfortunately that is a common misconception of the function of an application for leave, and it appears that requests for leave to adduce ‘new’ evidence are an increasingly popular method of attempting to secure re-trials.  But as Morzone DCJ observed in Queensland Police Service v Messer:

[A]n appeal is not a forum for parties to get ‘a second bite of the cherry’ by remedying an evidentiary deficiency and presenting it for the first time at the appeal hearing.

[12] In the interests of finality the law sets a strict test for the admission of ‘new’ or ‘fresh’ evidence.  The material in question must be evidence not reasonably available to the applicant at the time of the trial; it must be credible, and, if accepted, likely to have a substantial effect on the result.  In this case the information about State and Commonwealth registrations was a matter of public record well before the trial on 17 March 2021.  Thang discovered the Queensland position, as he sees it, after a week’s reflection and a ‘bit of research’.  Similarly, he applied the same simple bit of research to the ARC register on 9 June 2021.  No reason, let alone an acceptable one, is given for the postponement of those ‘researches’ until after the trial.[8]

(Citations omitted)

As we have said, the new evidence was reasonably available to the applicants at the time of the hearing of the proceeding by the tribunal.  Hence, it did not satisfy the test and, had an application to rely on that evidence been made, it would have been refused.

Leave to appeal

  1. [42]
    The principles applicable to determining an application for leave to appeal are well settled.  In Rintoul v State of Queensland[9] the Court of Appeal said:

The principles governing a grant of leave to appeal are well-established.  In short, an applicant for leave to appeal must show:

  1. the appeal is necessary to correct a substantial injustice;
  1. there is a reasonable argument that there is an error to be corrected.

There must be reasonable prospects of success to warrant a grant of leave.  Therefore, in deciding whether to grant leave to appeal the Court usually makes some preliminary assessment of the prospects of the proposed appeal.[10]

(Citations omitted)

  1. [43]
    The principles were restated in the form of questions by the appeal tribunal in TJ v Public Trustee of Queensland & Anor[11]:

… Is there a reasonably arguable case of error in the primary decision;  Is there a reasonable prospect that the applicant will obtain substantive relief;  Is leave necessary to correct a substantial injustice to the applicant caused by some error;  Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage.[12]

(Citations omitted)

  1. [44]
    The proposed grounds of appeal challenge the findings of fact by the learned Adjudicator.  First, it is asserted the premises were fit to live in contrary to the finding made, relying on the new evidence.
  2. [45]
    Secondly, it is asserted the mould was removed within the remedy period in the notice to remedy breach.
  3. [46]
    Thirdly, it is asserted the applicants were unable to mitigate their loss because the respondents’ possessions remained in the premises.
  4. [47]
    In the absence of submissions directed by the appeal tribunal on 8 June 2022, we have reviewed the transcript of the proceeding before the tribunal hearing the proceeding.  The first ground of appeal relies on the new evidence.  There is no application before the appeal tribunal to adduce the new evidence.  If there had been an application, as we have said, it would have been refused.
  5. [48]
    The findings made, in our view, were open to the learned Adjudicator on the evidence.
  6. [49]
    The proposed first ground of appeal is rejected.
  7. [50]
    The matters raised by the second and third proposed grounds of appeal were agitated before the tribunal hearing the proceeding and rejected by the learned Adjudicator.  Once again, the findings made, in our view, were open to the Adjudicator on the evidence.
  8. [51]
    These proposed grounds of appeal are also rejected.
  9. [52]
    We are not satisfied there is a reasonably arguable case of error in the primary decision or there is a reasonable prospect the applicants will obtain substantive relief.  Further, the applicants have not shown there is a need to correct a substantial injustice caused by some error, or there is a question of general importance on which further argument, and a decision of the appeal tribunal, would be to the public advantage.
  10. [53]
    It follows the application for leave to appeal must be dismissed.

Decision

  1. [54]
    The decision of the appeal tribunal is the application by the applicants for leave to appeal is dismissed.

Footnotes

[1] Section 142(3)(i) of the QCAT Act.

[2] See the definition of minor civil dispute in schedule 3 to the QCAT Act.

[3] Section 142(3)(b) of the QCAT Act.

[4] Section 147(2) of the QCAT Act.

[5]  [1984] 1 Qd R 404.

[6] Ibid at 408 citing Langdale v Dalby (1982) 3 All ER 129, per Lord Bridge at 137 – 138. See also Australian Alliance for Energy Productivity Ltd v Engineroom Infrastructure Consulting Pty Ltd [2023] QCATA 106, at [24].

[7] [2022] QCATA 18.

[8] Ibid at [11] to [12].  See also TJ v Public Trustee of Queensland & Anor [2022] QCATA 189, at [31].

[9] [2018] QCA 20. See also Terera v Clifford [2017] QCA 181, per Morrison JA at [10] (Atkinson and Douglas JJ agreeing). 

[10]  Ibid, per Applegarth J at [10] (Morrison and Philippides JJA agreeing).

[11] [2022] QCATA 189.

[12]  Ibid at [27].

Close

Editorial Notes

  • Published Case Name:

    ManageMe Property Management Solutions & Anor v Inak & Anor

  • Shortened Case Name:

    ManageMe Property Management Solutions v Inak

  • MNC:

    [2023] QCATA 132

  • Court:

    QCATA

  • Judge(s):

    Senior Member Traves

  • Date:

    16 Oct 2023

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Australian Alliance for Energy Productivity Ltd v Engineroom Infrastructure Consulting Pty ltd [2023] QCATA 106
2 citations
Jump To
Cite 1 - [2023] QCATA 106
Cite 2 - [2023] QCATA 106
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
2 citations
Jump To
Cite 1 - [1984] 1 Qd R 404
Cite 2 - [1984] 1 Qd R 404
Langdale v Danby (1982) 3 All. E.R. 129
2 citations
Jump To
Cite 1 - (1982) 3 All. E.R. 129
Cite 2 - (1982) 3 All. E.R. 129
R v HBO [2017] QCA 18
1 citation
Jump To
Cite 1 - [2017] QCA 18
Rintoul v State of Queensland [2018] QCA 20
2 citations
Jump To
Cite 1 - [2018] QCA 20
Cite 2 - [2018] QCA 20
Terera v Clifford [2017] QCA 181
1 citation
Jump To
Cite 1 - [2017] QCA 181
Thang Long Pty Ltd v CTS Sunstate Group Pty Ltd [2022] QCATA 18
2 citations
Jump To
Cite 1 - [2022] QCATA 18
Cite 2 - [2022] QCATA 18
TJ v Public Trustee of Queensland [2022] QCATA 189
2 citations
Jump To
Cite 1 - [2022] QCATA 189
Cite 2 - [2022] QCATA 189

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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