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CITE

Unreported Judgment

Tuendemann v JD Property (Aust) Pty Ltd[2023] QCATA 153Senior Member Traves and Member Lember
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Tuendemann v JD Property (Aust) Pty Ltd[2023] QCATA 153

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:	Tuendemann v JD Property (Aust) Pty Ltd [2023] QCATA 153
PARTIES:	BIANCA TUENDEMANN (applicant/appellant) v jd property (aust) pty ltd (respondent)
APPLICATION NO/S:	APL271-22
ORIGINATING APPLICATION NO/S:	MCDT1034/22 (Brisbane)
MATTER TYPE:	Appeals
DELIVERED ON:	21 November 2023
HEARD AT:	Brisbane
DECISION OF:	Senior Member Traves Member Lember
ORDERS:	Leave to appeal the decision of 25 August 2022 (MCDT1034/22) is refused. The application for leave to appeal is dismissed.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where applicant tenant disputes compensation awarded to lessor at end of tenancy – whether evidence supports the decision – where no error of law – leave to appeal refused Residential Tenancies and Rooming Accommodation Act 2008 Qld s 166, s 188, s 362, s 416, s 419, s 420 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 102, s 143 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 Cachia v Grech [2009] NSWCA 232 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Griffin v Gini [2011] QCATA 325 Gubier v Queensland Department of Housing and Public Works [2020] QCATA 23 House v R (1936) 55 CLR 499 JM v QFG and KG [1998] QCA 228 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Rodgers v Rodgers (1964) 114 CLR 608 Stone v Grundy [2018] QCATA 68
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

What is this application about?

[1]
These proceedings concern Ms Tuendemann’s application for leave to appeal,^[1] and, if successful, her appeal against a decision of the Tribunal below made on 25 August 2022 that she pay $658.87 in compensation to the respondent lessor upon the ending of her tenancy (‘the decision’).
[2]
In determining whether to grant leave to appeal, the Appeal Tribunal must be satisfied that, relevantly:
1. there is a reasonably arguable case of error in the primary decision;^[2]
2. there is a reasonable prospect that the appellant will obtain substantive relief;^[3] and
3. leave is needed to correct a substantial injustice caused by the error;^[4] or
4. there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.^[5]
[3]
Put simply, Ms Tuendemann says the decision is contrary to the evidence that was before the Tribunal when the decision was made.
[4]
An error of law may occur where a decision maker:
1. has made a finding of fact without probative evidence to support it or drawn an inference which was not reasonably open on the primary facts;^[6] or
2. has made a decision which is manifestly unreasonable by failing to give adequate weight to a relevant factor of great importance or given excessive weight to a relevant factor of no great importance.^[7]

[5]
A factual conclusion is not infected by legal error unless there is no evidence to support it or unless it is clearly wrong.^[8] It is insufficient that the Appeal Tribunal merely disagree with a factual view of the Tribunal.^[9]

Background to the residential tenancy dispute

[6]
It is not disputed that:

(a)
The parties entered into a General Tenancy Agreement (‘GTA’) on 4 February 2021, the relevant terms of which were as follows:

(i)
The fixed term commenced on 17 February 2021 and was to end on 16 February 2022.^[10]

(ii)
Rent was $290.00 per week.^[11]

(iii)
The bond was $1,160,00.^[12]

(iv)
Water consumption charges were payable in addition to rent, subject to certain conditions.^[13]

(v)
Ms Tuendemann was obliged, at the end of the tenancy, to leave the premises as far as possible in the same condition they were in at the start of the tenancy, fair wear and tear excepted.^[14]

(b)
Ms Tuendemann vacated the tenancy on 16 February 2022.

(c)
The parties completed Residential Tenancies Authority (RTA) dispute resolution procedures on or by 7 April 2022.^[15]

(d)
When the matter came before the Tribunal, the RTA held a balance bond of $490.00, with the sum of $670.00 having been previously released to the lessor with Ms Tuendemann’s consent.

[7]
On 14 April 2022 the lessor brought an application for a minor civil dispute – residential tenancy dispute (MCDT1034-22) seeking orders that Ms Tuendemann pay:
1. $41.43 for rent;
2. $326.28 for water consumption charges;
3. $350.00 for cleaning;
4. $758.26 to repair damages and for rubbish removal; and
5. $127.50 costs (the filing fee).
[8]
Ms Tuendemann disputed the claims and sought orders that the remaining bond be refunded to her.
[9]
The claim was heard in Brisbane on 25 August 2022 with both parties appearing in person. The respondent lessor was represented by its agent, Mr Sifonias.
[10]
Of the sums sought by the lessor, the Tribunal awarded:
1. $41.43 for rent;
2. $157.28 for water consumption charges;
3. $175.00 for cleaning;
4. $157.66 for damages; and
5. $127.50 costs (the filing fee).
[11]
Ms Tuendemann submits that errors were made with respect to the water consumption, damages, cleaning and costs awards. She concedes the rent decision as correct.^[16]
[12]
The evidence before the Tribunal at first instance included:
1. the GTA;
2. the notice of unresolved dispute issued by the RTA on 7 April 2022;
3. the entry condition report signed by Ms Tuendemann on 20 February 2021;
4. the exit condition report, unsigned, with colour photographs attached;
5. the tenancy rental ledger for the entirely period of the tenancy;
6. tax invoice from Focus Cleaning Qld for a “partial bond clean” in the sum of $350.00;
7. tax invoice from Andy Witbrock Repairs and Maintenance dated 14 March 2022 for $758.26;
8. tater efficiency certification by O.A. Plumbing dated 19 October 2012;
9. Logan City Council water rates assessments issued 16 July 2021;
10. tater invoices issued by the lessor to the tenant dated 11 August 2021, 7 December 2021 and 17 February 2022 including consumption calculations; and
11. Emails and photographs submitted by Ms Tuendemann, together with her copy of the entry condition report.
[13]
Neither party sought leave to rely on new evidence. Neither sought an oral hearing.

The legislative framework – the RTRAA

[14]
When the matter was heard, the significant residential tenancy reforms that commenced on 1 October 2022 were not in effect. Accordingly, all references to the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘RTRAA’) herein are to the prior reprint unless otherwise specified.^[17]

Water

[15]
Section 166 of the RTRAA relevantly provided as follows.

(2)
The tenant may be required to pay an amount for the water consumption charges for the premises only if—

(a)
the tenant is enjoying or sharing the benefit of a water service to the premises; and

(b)
the premises are individually metered for the supply of water…; and

(3)
The tenant may be required to pay an amount for all of the water consumption charges payable for the premises for a period only if, during the period, the premises are water efficient.

(6)
Despite subsections (2) to (5), the tenant may not, for a period, be required to pay an amount for water consumption charges for the premises that is more than the amount of the water consumption charges payable to the relevant water supplier.

(7)
Also, the tenant may not be required to pay an amount of the water service charges payable for the premises for a fixed charge for the water service to the premises.

(8)
For this section, premises are water efficient only if they comply with the water efficiency requirements prescribed under a regulation.

(9)
In this section—

water consumption charge, for premises, means the variable part of a water service charge assessed on the volume of water supplied to the premises.

Tenants’ cleaning and repair obligations when a tenancy ends

[16]
At the end of the tenancy the tenant must leave the premises as far as possible in the same condition they were in at the start of the tenancy, fair wear and tear excepted.^[18]
[17]
In Griffin v Gini^[19] Judge Fleur Kingham, Deputy President said:

In general, the ordinary meaning of the phrase is concerned with the consequences of ordinary, not extraordinary damage (JSM Management Pty Ltd v QBE Insurance (Australia) Ltd [2011] VSC 339, [36]). In the case of “wear”, this might mean, for example, fading paint work on internal and external walls caused by sunlight over time; “tear” refers to disrepair caused by a tenant through unintentional action or through the normal incident of a tenant’s occupation (Taylor v Webb [1937] 2 KB 283, 302).

Compensation for breach

[18]
Claims for compensation arising from a breach of the RTRAA or the tenancy agreement are made under sections 419 and 420 of the RTRAA and must be made within six months of the claiming party “becoming aware of the breach”. There is no jurisdiction to extend the time limit.^[20]
[19]
As dispute resolution is a mandatory step to commencing an application, the time limit is considered to “freeze” at the time the dispute resolution request is made.^[21]
[20]
To the extent the compensation sought is not time-barred under s 419(3), under s 420 the tribunal may make an order for the payment of money or an order for compensation on an application about a breach.
[21]
Where a lessor is claiming compensation due to an act or omission of the tenant, they must take all reasonable steps to mitigate their loss and are not entitled to receive compensation for any loss or expense that could have been avoided by taking the steps.^[22]

Is there a reasonably arguable case of error in the decision?

Water charges

[22]
Ms Tuendemann’s argument as to error with respect to the first instance decision on water charges relies upon her observation that the front page of her entry condition report that records the water meter reading at “0”. She says the exit condition report also notes the meter reading at “0” and therefore there is no evidence of water consumption, saying that:^[23]

I cannot be charged for 0 consumption.

[23]
She says further that:^[24]

…as far as I was aware the property is not individually metered, and I still have not been supplied the relevant documents to show how the charge was incurred and both my entry and exit reports have a reading of 0.

[24]
Respectfully, this argument is a nonsense because:

(a)
There was sufficient evidence before the Tribunal:

(i)
the GTA provided for the tenant to pay water consumption charges;

(ii)
the tenancy was individually metered (according to photographs of the meter with its meter readings attached to the condition reports);

(iii)
the premises were water efficient (according to the water efficiency certificate);

(iv)
the water rate charged by the supplying water authority (according to the Logan Council rates water notice) for the building (in which the tenanted premises were situated) was the rate passed onto Ms Tuendemann; and

(v)
the method of calculation of water consumption charges and fees (according to detailed calculations attached to the lessor’s water invoices).

(b)
The exit condition report does not note the water meter reading at “0” but rather at “000717” and this is supported by a photograph of the water meter reading attached to the document.

(c)
According to the hearing transcript, the matter was explored at length, with the learned Adjudicator stepping Ms Tuendemann through the evidence before her, including the terms of the GTA and the invoices Ms Tuendemann had received.

[24]
Of the water payments claimed by the lessor, only those that had been invoiced for payment after 7 October 2021 were within time under s 420. The learned Adjudicator was cognisant of this, even in the absence of a submission from Ms Tuendemann on point and the Tribunal was therefore correct to dismiss the claim for $169.00 pursuant to the water consumption invoice dated 11 August 2021.
[26]
There is no error in the learned Adjudicator’s decision with respect to the balance water consumption charges awarded and she made that decision on ample evidence before her.

Cleaning

[27]
With respect to cleaning, Ms Tuendemann says that the Tribunal “said on multiple occasions that there was no evidence of damage or any cleaning but still awarded half of the invoice”.^[25]
[28]
Having reviewed the transcript of the hearing this submission is inaccurate.
[29]
According to the transcript:
1. Ms Tuendemann produced her photographic evidence of stains and flaking paint chips on entry and exit. The learned Adjudicator noted that these were damage items, not cleaning items, but, in any event, they were not items the cleaning claim related to.^[26]
2. Ms Tuendemann said that she left the property cleaner than when she went in but conceded that she did not make notes as to cleanliness on the entry condition report other than with respect to the carpet stains and flaking paint chips. This is supported by the report tendered in evidence and signed by Ms Tuendemann in which the “Yes” box is ticked for all items under the “clean” heading and Ms Tuendemann has not noted that anything was unclean, save for the paint flakes.^[27]
3. Mr Sifonias said that the exit condition report notes the cleaning items claimed, including spot cleaning of walls, cleaning blinds and shower screens and discoloured grout. ^[28]
4. The colour photographs attached to the exit condition report evidence that the property was left in a mostly clean condition, save for some minor marks and items in respect of which a ‘top up’ clean was required to return the property to the condition it was in, with respect to cleanliness, at the start of the tenancy.
5. The learned Adjudicator reduced the cleaning invoice to one-half because the “cleaning invoice represents six or seven hours of cleaning” and she found that difficult to reconcile having regard to the notes on the exit condition report (compared with the entry condition report) and the exit conditions photographs.^[29] The claim was reduced to allow for four hours of cleaning and the Appeal Tribunal is satisfied that it was open to the learned Adjudicator to make that determination on the evidence before her.
6. Further, there was evidence before the Tribunal that the lessor attempted to mitigate loss because their email to Ms Tuendemann sent 18 February 2022 enclosed the exit condition report and offered an opportunity for her to have her cleaners return to the property to address the spot cleaning required, which was declined by Ms Tuendemann in her reply email sent 20 February 2022.
[30]
There is no error in the learned Adjudicator’s decision with respect to the cleaning fees and she made that decision on ample evidence before her.

Damages

[31]
The damages claim related to:^[30]
1. patching two dent marks in the ceiling and repairing and painting walls in the lounge;
2. patching a hole in the wall and two dents in the door and replacing a light globe in bedroom one;
3. repairing a scuff mark on the door of bedroom two; and
4. removing and dumping a lounge suite that had been left on the footpath.
[32]
Again:
1. the lessor’s email to Ms Tuendemann of 18 February 2022 enclosed the exit condition report and offered an opportunity for her to undertake the repairs and to remove the lounge left on the footpath; and
2. Ms Tuendemann denied that the property was damaged and said “I have no idea what lounge you are referring to” in her reply email sent 20 February 2022.
[33]
In the hearing:
1. Ms Tuendemann said that she had replaced a faulty light globe before she left but conceded it was in the lounge room. Mr Sifonias noted that the light globe claimed was in bedroom one. The exit photographs show that the lessor photographed lights turned off and turned on in each room. The main light in bedroom one has not been photographed in a working condition, leading to the inference that it was not working. The learned Adjudicator allowed $15 plus GST for the light globe replacement as an arbitrary amount. This is not unreasonable.
2. Having previously denied knowledge to the lessor as to the ownership of the discarded lounge, Ms Tuendemann admitted that it was hers but explained that she was “giving it away on Gumtree” and “someone was meant to come pick it up”.^[31] She said she could have come back and moved it had she been given the opportunity, however, the opportunity had already been granted to her once and, in any event, her section 188(4) obligations crystallise when the tenancy ends, therefore, it was by 16 February 2022 the lounge had to be removed and if it was not this gave rise to a breach by Ms Tuendemann for which compensation could be sought.
3. As for the other claims, the learned Adjudicator explained to Mr Sifonias that she has having difficulty seeing on the exit photographs the scuffs and holes described as having damage that required repair. Mr Sifonias conceded the difficulty and abandoned the damages claims, save for the furniture removal cost and dumping fees, totalling $128.33.

Costs

[34]
The learned Adjudicator exercised her discretion under s 102(1) of the QCAT Act to award the lessor’s costs, being the filing fee incurred, on the basis that the lessor had been, mostly, successful. She did not go into a thorough examination of the factors that “may” be considered under s 102 of the QCAT Act before making the order, but this is understandable given the fast-paced nature of the minor civil dispute jurisdiction and nothing in the legislation required her to do so.
[35]
In any event, there is a strong presumption in favour of a decision involving discretionary judgment. It is not enough that the Appeal Tribunal might have decided differently. Rather, an applicant must show that, in terms of House v R^[32] and Australian Coal and Shale Employees’ Federation v The Commonwealth,^[33] that the discretion exercised by the decision maker has miscarried by acting on a wrong principle or giving weight to extraneous or irrelevant matters or failing to give weight or sufficient weight to relevant considerations or making a mistake as to the facts. The result must be so unreasonable or plainly unjust that the Appeal Tribunal may infer that there has been a failure to properly exercise the discretion. That is not the case here on the evidence before the Appeal Tribunal.

Should leave to appeal be granted?

[36]
For the reasons given, there is no arguable case of legal error in the primary decision and Ms Tuendemann does not have a reasonable prospect of obtaining substantive relief.
[37]
Further, the claim is not one of general importance such as it would be in the public interest to have it determined on appeal.
[38]
In the circumstances, leave to appeal is refused and, therefore, the application for leave to appeal is dismissed.

Footnotes

[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 143(3).

[2]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

[3]Cachia v Grech [2009] NSWCA 232, 2.

[4]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

[5]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580.

[6]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 356.

[7] Ibid., 40-42.

[8]JM v QFG and KG [1998] QCA 228, Pincus JA at 21.

[9] Ibid; Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611, [131].

[10] Item 6, GTA.

[11] Item 7, GTA.

[12] Item 11 and clause 13, GTA.

[13] Item 12, clause 16 and Special Term 6 (Annexure A), GTA.

[14] Clause 37, GTA and section 188(4) Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘RTRAA’).

[15] Notice of Unresolved Dispute dated 7 April 2022, bearing conciliation number M661883; section 416, RTRAA.

[16] Submissions made 30 October 2022.

[17] Reprint current 1 July 2022.

[18] Clause 37 of the standard term tenancy agreement corresponding to s 188(4) of the RTRAA.

[19] [2011] QCATA 325 at [12].

[20]Gubier v Queensland Department of Housing and Public Works [2020] QCATA 23 [9].

[21] RTRAA, s 416.

[22] RTAA, s 362.

[23] Submissions filed 30 October 2022.

[24] Ibid.

[25] Application for leave to appeal or appeal filed 14 September 2022, Part C.

[26] Hearing transcript, page 1-11, lines 19-22.

[27] Hearing transcript, page 1-10, lines 26-27.

[28] Hearing transcript, page 1-11, lines 24-27.

[29] Hearing transcript, page 1-11, lines 44-46.

[30] Invoice of Andy Witbrock Repairs & Maintenance dated 14 March 2022.

[31] Hearing Transcript, page 1-12, lines 33-34.

[32] (1936) 55 CLR 499.

[33] (1999) 217 ALR 495; confirmed in Rodgers v Rodgers (1964) 114 CLR 608.

Editorial Notes

Published Case Name:
Tuendemann v JD Property (Aust) Pty Ltd
Shortened Case Name:
Tuendemann v JD Property (Aust) Pty Ltd
MNC:
[2023] QCATA 153
Court:
QCATA
Judge(s):
Senior Member Traves, Member Lember
Date:
21 Nov 2023

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Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Australian Broadcasting Tribunal v Bond	View on:JADE(1990) 170 CLR 321	2 citations Jump To Cite 1 - (1990) 170 CLR 321 Cite 2 - (1990) 170 CLR 321
Australian Coal and Shale Employees' Federation v The Commonwealth	View on:JADE(1953) 94 CLR 621	1 citation Jump To Cite 1 - (1953) 94 CLR 621
Cachia v Grech	View on:JADE[2009] NSW CA 232	2 citations Jump To Cite 1 - [2009] NSW CA 232 Cite 2 - [2009] NSW CA 232
Glenwood Properties Pty Ltd v Delmoss Pty Ltd	[1986] 2 Qd R 388; [1986] QSC 221	2 citations Jump To Cite 1 - [1986] 2 Qd R 388 Cite 2 - [1986] 2 Qd R 388
Griffin v Gini	[2011] QCATA 325	2 citations Jump To Cite 1 - [2011] QCATA 325 Cite 2 - [2011] QCATA 325
Gubier v Queensland Department of Housing and Public Works	[2020] QCATA 23	2 citations Jump To Cite 1 - [2020] QCATA 23 Cite 2 - [2020] QCATA 23
House v The King	View on:JADE(1936) 55 CLR 499	2 citations Jump To Cite 1 - (1936) 55 CLR 499 Cite 2 - (1936) 55 CLR 499
JM v QFG	[2000] 1 Qd R 373; [1998] QCA 228	2 citations Jump To Cite 1 - [1998] QCA 228 Cite 2 - [1998] QCA 228
JSM Management Pty Ltd v QBE Insurance ( Australia ) Ltd	View on:JADE[2011] VSC 339	1 citation Jump To Cite 1 - [2011] VSC 339
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd	[1989] 2 Qd R 577; [1989] QSCFC 53	2 citations Jump To Cite 1 - [1989] 2 Qd R 577 Cite 2 - [1989] 2 Qd R 577
Minister for Immigration and Citizenship v SZMDS	View on:JADE(2010) 240 CLR 611	2 citations Jump To Cite 1 - (2010) 240 CLR 611 Cite 2 - (2010) 240 CLR 611
QUYD Pty Ltd v Marvass Pty Ltd	[2009] 1 Qd R 41; [2008] QCA 257	3 citations Jump To Cite 1 - [2009] 1 Qd R 41 Cite 2 - [2009] 1 Qd R 41 Cite 3 - [2009] 1 Qd R 41
Reading Australia Pty Ltd v Australian Mutual Provident Society	(1999) 217 ALR 495	2 citations Jump To Cite 1 - (1999) 217 ALR 495 Cite 2 - (1999) 217 ALR 495
Rodgers v Rodgers	View on:JADE(1964) 114 CLR 608	2 citations Jump To Cite 1 - (1964) 114 CLR 608 Cite 2 - (1964) 114 CLR 608
Stone v Grundy	[2018] QCATA 68	1 citation Jump To Cite 1 - [2018] QCATA 68
Taylor v Webb	View on:ICLRUK(1937) 2 KB 283	1 citation Jump To Cite 1 - (1937) 2 KB 283

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Tuendemann v JD Property (Aust) Pty Ltd[2023] QCATA 153