Ovseev v Pristine Management Pty Ltd
[2023] QCATA 168
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- Ovseev v Pristine Management Pty Ltd[2023] QCATA 168
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Ovseev v Pristine Management Pty Ltd[2023] QCATA 168
Ovseev v Pristine Management Pty Ltd[2023] QCATA 168
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Ovseev v Pristine Management Pty Ltd [2023] QCATA 168 |
PARTIES: | MELANIE LOUISE PRIMMER (first appellant) ROBERT ASHLEY OVSEEV (second appellant) v Pristine Management Pty Ltd (respondent) |
APPLICATION NO/S: | No. APL 219 of 2022 |
ORIGINATING APPLICATION NO/S: | Noosa Claim T 29 of 2022 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 18 December 2023 |
HEARING DATE: | On-papers Hearing |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member Rinaudo AM |
ORDERS: |
|
CATCHWORDS: | ADMINISTRATIVE LAW — ADMINISTRATIVE TRIBUNALS — QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL — appeal from decision of magistrate sitting as tribunal member — minor civil dispute — where reasons given were inadequate — appeal allowed Acts Interpretation Act 1954 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld) Residential Tenancies and Rooming Accommodation Act 2008 (Qld) Commonwealth of Australia v Pharmacy Guild of Australia [1989] FCA 797; 91 ALR 65 Owen v Menzies [2012] QCA 170; [2013] 2 Qd R 327 Pickering v McArthur [2005] QCA 294 Public Service Board of New South Wales v Osmond [1986] HCA 7; 159 CLR 656 |
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
Appeal
- [1]Melaine Primmer and Robert Ovseev (‘the appellants’) make an application for leave to appeal a decision of the Queensland Civil and Administrative Tribunal (‘the Tribunal’) made in Maroochydore on 27 June 2022.
- [2]The appellants were tenants pursuant to a residential tenancies agreement of a property owned by Jeanette Campbell (‘the owner’) and managed by Pristine Management Pty Ltd (‘the respondent’).
- [3]The decision subject of the appeal, made by a magistrate sitting as the Tribunal (‘the learned magistrate’) is:
- The appellants to pay the respondent the sum of $9,000.00.
- The bond amount of $2,500.00 to be released to the respondent.
- The appellants to pay to the respondent the balance amount of $6,500.00.
History
- [4]The appellants entered into possession of the premises pursuant to a tenancy agreement on 19 January 2019. Notice to vacate the property was given on 20 October 2021. A warrant for possession was issued on 11 February 2022. The appellants vacated the property on 19 February 2022.
- [5]A claim for compensation was made in the Tribunal pursuant to the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘the RT Act’) in the sum of $12,375.00. The particulars of this amount are contained in “annexure A” to the claim.
- [6]“Annexure A” contained eight items of expenditure, totalling $12,375.23, claimed by the respondent, together with supporting evidence, including copies of invoices, receipts, and photographs.
- [7]The claim was heard and determined by the learned magistrate on 27 June 2022.
The hearing of the claim
- [8]A transcript of the hearing was not available. The recording of the hearing was provided.
- [9]The learned magistrate introduced the matter and confirmed appearances. He noted that he had read the material filed and looked at the photos. He then gave a summary of what he understood to be the issues in dispute. The respondent was then asked if it wanted to add anything. The respondent noted that due to an agreement with the appellants about some cleaning, the amount of the claim was reduced to $11,773.07. During the hearing, a further amount of $90.00 was conceded by the respondent for repair to the door, bringing the total claim to $11,683.07.
- [10]The respondent then proceeded to address the items claimed. The respondent was given an opportunity to put its arguments to the learned magistrate.
- [11]The learned magistrate then gave the appellants an opportunity to respond. It is clear from the recording of the hearing, that the respondent was able to put before the magistrate orally, everything they wanted to. During the hearing, reference was made to the appellants’ reply to the claim dated 24 June 2022. The appellant asked the magistrate to consider further affidavit and other material filed more recently. The learned magistrate refused to allow the material has it had been filed after directions had been made and an adjournment was granted on 3 May 2022. The learned magistrate also reasoned that it would be unfair to the respondent if the material was admitted at this late stage as it would have little time to consider and reply.
- [12]After hearing both parties, the learned magistrate made a decision, which took into account the written material and the oral submissions of the parties. He accepted the respondent as reliable and truthful. He acknowledged the difficulty in addressing issues such as fair wear and tear from photos. He did say he thought the photos provided by the respondent were as good as he had seen.
- [13]He expressed concern for the veracity of what the appellants had told him and said that where there was a dispute as to facts, he accepted the version of the respondent.
- [14]The learned magistrate nonetheless made concessions as requested by the appellants, in a global way, for fair wear and tear/depreciation, and made an order that the appellants pay $9,000.00 to the respondent, made up of the bond of $2,500.00 and payment from the appellants to the respondent of $6,500.00.
Submissions
- [15]In their application for leave to appeal, the appellants listed their grounds of appeal as:
- procedure was not followed, in that, neither the appellants nor the respondents were sworn in at the final hearing;
- the matter was adjourned from 10 June 2022, and the appellants had submitted documents which they did not believe were presented to the magistrate at the next hearing;
- the magistrate would not accept material submitted after an adjournment on 10 June 2022. This included date stamped photos and an affidavit relevant to the proceedings. It was submitted that the learned magistrate would not accept this material and “did not appear to have any other materials [the appellants] had provided previously”;[1] and
- parts of the RT Act were not considered, in particular, s 183 — quiet enjoyment.
- [16]The appellants’ application for a stay was refused on 26 September 2022.
- [17]The respondent submitted that as the appellants failed to comply with directions made on 3 August 2022, this appeal should be dismissed.
- [18]The respondent further submitted that no mistake of law or fact had been made by the learned magistrate and the appeal had no prospects of success and was vexatious.
Applicable law
- [19]Leave to appeal will usually only be granted where it is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.[2]
- [20]
- [21]When dealing with an application for leave to appeal, the Appeal Tribunal must decide the appeal by way of rehearing.[5] The Appeal Tribunal may allow additional evidence to be adduced. The Appeal Tribunal may, in dealing with the appeal:[6]
- confirm or amend the decision;
- set aside the decision and substitute its own decision; or
- set aside the decision and return the matter to the tribunal or other entity who made the decision for reconsideration.
Discussion and decision
- [22]It is clear from the recording of the hearing that the learned magistrate had read the material submitted by the respondent, and the material submitted by the appellants dated 24 June 2022. Although the learned magistrate did not, in his reasons for decision, make reference to the additional material the appellants sought to rely on, he did, during submissions, give reasons as to why he would not allow it. I am satisfied the learned magistrate correctly disallowed this material.
- [23]What is clear is that he preferred the evidence of the respondent over the appellants. The respondent filed a comprehensive application. The learned magistrate regarded it as “one of the most comprehensive and well presented [he had] ever seen”. In the application, the respondent stated that the appellants left the premises after a warrant for possession was issued.
- [24]The appellants explained to the learned magistrate that there were many good reasons why they did not accept the respondent’s claims.
- [25]Ultimately, in deciding the claim, the learned magistrate simply stated that he accepted the respondent’s version of events particularly where there was a disputed fact and rejected the evidence of the appellants.
- [26]From the recording, the learned magistrate appears to have formed this view because of two issues that were in conflict. The first issue related to chattels taken from the property belonging to the respondent. The appellant stated there was no inventory. There clearly was one attached to the entry condition report, and one appears in the material.
- [27]The second issue related to a night dress and underwear, found under the bed. The appellants’ version that their cleaners had cleaned under the bed was rejected by the learned magistrate. The respondent’s version of not knowing how the bed legs had gotten into the items removed from the property appears fanciful, given the discovery of the items under the bed. It also casts doubt that the underside of the bed was ever cleaned.
- [28]In his decision, the learned magistrate stated he had considered each area of the claim, noting the appellants’ submission on fair wear and tear, and that they made some attempt to leave the property clean, and settled on a global amount of $9,000.00 to be paid by the appellants to the respondent.
- [29]Of course, the Tribunal is required to have regard to the provider’s reasonable steps to mitigate the loss and expense.[7] There is no indication the learned magistrate has done so here.
- [30]It is not known how the learned magistrate arrived at a figure of $9,000.00. The respondent made no submission that the claim amount should be reduced, and the appellants made no submission about the amount of the reduction.
- [31]It is clear that the learned magistrate’s decision is deficient in a number of respects. It is not clear on its face how the decision to award $9,000.00 was reached. What claims contained in “annexure A” were allowed in part or in full? What submissions of the appellants were accepted or rejected?
- [32]No mention is made in the decision to the appellants’ submissions other than the learned magistrate’s acceptance of the respondent’s version where facts were disputed.
- [33]In my view, the learned magistrate has fallen into error in not providing sufficient reasons. It has been noted that the purpose of requiring reasons is to “inform the public and parties with an immediate interest in the outcome of the proceedings of the manner in which the Tribunal’s conclusions were arrived at”.[8]
- [34]Whilst it is accepted that reasons do not have to address every issue, in this case reasons could not be said to address any of the issues.
- [35]
- [36]Inadequate reasons is an error of law. The application for leave to appeal should be allowed.
- [37]It was wrong of the learned magistrate to adopt a global figure. In doing so, he has deprived the appellants of the opportunity to consider the reasoning in respect of each of the items claimed.
- [38]For the reasons set out above, the Tribunal makes the following orders:
- The application for leave to appeal is granted.
- The appeal is allowed.
- The decision of the learned magistrate made on 27 June 2022 is set aside.
- The matter is remitted for rehearing before a differently constituted tribunal.
Footnotes
[1] Application for leave to appeal filed 25 July 2022, p 3.
[2] Pickering v McArthur [2005] QCA 294.
[3] See Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) Sch 3 (definition of ‘minor civil dispute’).
[4] QCAT Act s 142(3)(b).
[5] Ibid, s 147(2).
[6] Ibid, s 147(3).
[7] RT Act s 421(2)(d).
[8] Commonwealth of Australia v Pharmacy Guild of Australia [1989] FCA 797; 91 ALR 65, [42].
[9] See, generally, QCAT Act ss 122, 164; Owen v Menzies [2012] QCA 170; [2013] 2 Qd R 327; Public Service Board of NSW v Osmond [1986] HCA 7; 159 CLR 656.
[10] Acts Interpretation Act 1954 (Qld) s 27B.