Zarb v AirBNB Manager (Leonard West & Julia Kater)
[2023] QCATA 27
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- Unreported Judgment
- Zarb v AirBNB Manager (Leonard West & Julia Kater)[2023] QCATA 27
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Zarb v AirBNB Manager (Leonard West & Julia Kater)[2023] QCATA 27
Zarb v AirBNB Manager (Leonard West & Julia Kater)[2023] QCATA 27
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Zarb v AirBNB Manager (Leonard West & Julia Kater) [2023] QCATA 27 |
PARTIES: | DANIEL ZARB (applicant) v AIRBNB MANAGER (LEONARD WEST & JULIA KATER) (respondent) |
APPLICATION NO/S: | APL142-22 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 17 March 2023 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Lumb |
ORDERS: | Leave to appeal is refused. |
CATCHWORDS: | APPEAL – GENERAL PRINCIPLES – leave to appeal – minor civil dispute – question of fact – whether reasonable argument that decision was attended by error and an appeal is necessary to correct a substantial injustice Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142 Berry v Treasure & Anor [2021] QCATA 61 Bradshaw v Moreton Bay Regional Council [2018] QCATA 140 Queensland v Masson (2020) 381 ALR 560, [2020] HCA 28 Saxer v Hume [2022] QCATA 25 |
REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | Self-represented |
REASONS FOR DECISION
Introduction
- [1]By an Application for leave to appeal or appeal filed on 25 May 2022 (the Appeal Application), the Applicant (Mr Zarb) seeks leave to appeal, and appeal, a decision made by the Queensland Civil and Administrative Tribunal (the Tribunal) on 18 May 2022 (the Decision).
- [2]The Decision was made in a proceeding commenced by ‘AIRBNB MANAGER (LEONARD WEST/JULIA KATER)’ (AirBNB Manager)[1] by an Application for minor civil dispute – minor debt filed on 16 March 2022 (the MCD Application). The claim was for $1,000.00 comprising $500.00 for money owing for cleaning work performed at a property in Maroochydore (the property) and $500.00 for set-up costs allegedly incurred in relation to a management agreement in respect of the property. It was proposed that the property be rented through AirBNB Manager and it was necessary to clean the property to enable that to occur.
- [3]The hearing of the MCD Application proceeded on 18 May 2022. By the Decision, the Tribunal (constituted by an Adjudicator) ordered that Mr Zarb pay AirBNB Manager $571.65 (being $500.00 for the claim and $71.65 for the filing fee) within 21 days. The $500.00 allowed related to the cleaning costs. No amount was allowed for the set-up costs (and this amount is not in issue in the Appeal Application).
The Reasons
- [4]The Adjudicator’s Reasons, as recorded in the Transcript of the hearing, relevantly stated:[2]
… Mr Zarb had considered putting his property with Airbnb manager, and asked them if they could arrange cleaning of the property. Some discussions were involved about moving things out of the property, etcetera, and then the cleaning was to commence. Mr Zarb had been living in the property, and like all of us when we live in properties for a while, there are certain - there's a lot of cleaning needed to be done, because furniture is covering skirting boards, etcetera, and for a property to get back to an impeccable standard, a lot of cleaning needs to be done.
There does seem to have been some issues with the cleaning at the beginning. The first cleaner left after a couple of hours, apparently, because she had to go home due to some domestic violence issues, so another cleaner was sent the next day, or two cleaners, and they worked for five hours. There's no indication that they said the work was complete. In fact, they left all their cleaning things there. Knowing this, Mr Zarb went to see how the cleaning was going. He saw that the property was still very dirty. Rang Mr West and asked Mr West to attend the property. Mr West said, “No, the cleaning is still in progress,” and didn’t want to go to the property. So the two parties had a disagreement, which resulted in the agreement being terminated.
The fact is I consider it reasonable for Mr West not to go to the property in the middle of a cleaning operation, because there’s nothing to be gained by doing so. The time for Mr West to go to the property and look at it is if Mr Zarb has complaints about the cleaning once the cleaners have said they’re finished, because at that time Mr West can actually have a look around and see if Mr Zarb’s concerns are legitimate, but that didn’t happen.
Mr Zarb says, notwithstanding the fact that these cleaners are out at his property for that time, he doesn’t have to pay them. Certainly they were out there, they were doing something, and I consider it reasonable for them to be paid. There’s some photos. Obviously both parties, in fact, have photos of various things that aren’t clean, and Mr West has some photos of things that are clean. And it would be completely impossible for me to look at the photos and make a genuine detailed assessment of exactly what cleaning was or wasn’t done, because the cleaners were there, there is some cleaning done, and the contract ended mid-clean because Mr West wouldn't go out to the property. I think it’s reasonable that those cleaners be paid.
What I don’t think is reasonable is the claim for $500 for setup costs. According to Mr West, the contract was mutually terminated, which I accept, and, therefore, it would be unfair for him to charge that amount. Also, the fact is they were only managing the property for a couple of days, and charging that amount, in my view, would be a penalty due to the shortness of the contract itself. So I’m prepared to allow the 500 for the cleaning and $71.65 for the filing fee. The order will be within 21 days the respondent pay the applicant $571.65 …
The Grounds of Appeal
- [5]The Grounds of Appeal set out in the Appeal Application are stated as follows:
Question – Have the cleaners conducted 10 hours cleaning at the property? What works had been completed in 10 hours cleaning – detailed in emails, signed stat declarations and phone conversations at the time?
Fact – The services that had been stated to be done had not been done – The house was as we left it
Consumer Law – Services invoiced for had not been done – Manager of company refused to attend site to validate claims of works been done
Please see information and pictures attached to validate works had not been done as stated
Leave to appeal is required
- [6]An appeal against a decision by the Tribunal in a proceeding for a minor civil dispute may be made only if the party has obtained the Appeal Tribunal’s leave to appeal.[3]
- [7]As to the Tribunal’s approach to an application for such leave, I respectfully adopt the following observations of Judicial Member DJ McGill SC:[4]
… As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage. In deciding whether grounds for leave to appeal have been shown, it is relevant to consider that the proceeding was a minor civil dispute, and the obligation on the Tribunal was to make orders it considered to be fair and equitable to th parties to the proceeding in order to resolve the dispute: the QCAT Act s 13(1). The Tribunal was also required to comply with the QCAT Act s 28 and s 29.
(citation omitted)
- [8]
There is no automatic right of appeal against minor civil dispute decisions. I respectfully adopt and endorse the following observations by the former President, Justice Alan Wilson, in Durrand v Karaolis:
The Queensland Parliament has made it clear, in the QCAT Act, that so far as possible minor civil disputes of this kind are to be resolved by a simple procedure which is speedy, inexpensive and final. That conclusion is reinforced by the fact that before a party can appeal a decision in this jurisdiction it must obtain leave from the Appeal Tribunal … In other words, there is not an automatic right to appeal these decisions; rather, an applicant must first establish that it has a right to a grant of leave.
(citation omitted)
Should leave to appeal be granted?
- [9]The stated Grounds of Appeal raise a factual issue, namely, whether the services the subject of the claim by AirBNB Manager had been performed.
- [10]The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions reached by the tribunal at first instance; however, an appellate tribunal may interfere with findings of fact if the conclusion is ‘contrary to compelling inferences’.[6]
- [11]It has also been said that:
In particular cases, it may be demonstrated that a trial judge’s conclusions are erroneous, despite being based upon or said to be based upon an assessment of credibility, and that will be so where the trial judge’s findings of fact are contrary to ‘incontrovertible facts or uncontested testimony’ or are ‘glaringly improbable’ or ‘contrary to compelling inferences’.[7]
- [12]The part of the claim allowed by the Adjudicator comprised a claim for 10 hours of cleaning at $50.00 per hour (inclusive of GST).
- [13]In my view, Mr Zarb is seeking to re-argue the merits of the case. Mr Zarb’s case essentially revolves around the following material:
- (a)email correspondence between himself and Mr West;
- (b)an email from the cleaner who completed the cleaning of the property which, relevantly, was in the following terms:
- (a)
… I was quite surprised to hear that you had been billed for approx. 10 hours of cleaning from your previous cleaner as there didn’t seem to be much done at all. You could see where they attempted to clean a couple of walls but unfortunately it wasn’t a good job and left white chalky residue on them which was time consuming to get back to original condition. One bathroom had been wiped but still had mould in grout and glass was still dirty, toilet still had hair, scum, dust on and around. Ensuite wasn’t even touched. The filters had been pulled out of the aircons and put on floor, hadn’t been cleaned.
It seems that they have turned up, done a below average job of one bathroom (not scrubed, [sic] just wiped and no scum or mould removed, dirty screen and joins with scum), wiped a couple of walls which I believe it has made it more difficult to clean as it then needed a full wall wash to get rid of white chalky look, they also also [sic] pulled out the air con filters and not done anything with them. It is hard to guess how long that they would have been there for but if I had to have a guess, I would estimate 2 hours for one person
Attached is a couple of pictures prior to us starting after the previous cleaners had been through …
- (c)various photographs which were said to demonstrate that the cleaning of areas claimed to have been cleaned had not in fact been carried out.
- [14]The Adjudicator heard from both Mr Zarb and Mr West at the hearing. At the hearing, Mr West maintained that 10 hours of cleaning had been carried out.
- [15]AirBNB Manager also submitted the following material:
- (a)a statutory declaration declared on 23 February 2022 from Mr Perez, one of the cleaners engaged by AirBNB Manager,who stated:
- (a)
I was engaged for bond cleaning at [the property] on Wednesday 9 February from 8:15 am to 3:15 pm. I cleaned most:
- –Ground floor walls and skirting boards
- –Kitchen cupboards: inside and outside and drawers and the pantry
- –Ground floor fans and first floor fans
- –Air conditionings [sic]
- –Ground floor bathroom
- –1 full room
- –Windows ledges and door frames
- –Ground floor surfaces
I couldn’t finish that day because it was filthy
- (b)a statutory declaration by Ms Kater sworn on 3 March 2022 which referred to witnessing the ‘filthy premises’ (being the property);
- (c)some photographs were also relied upon which were said to provide an example of filthy windows and frames and an example of a light switch prior to commencement of the cleaning work as well as photographs of the butler’s pantry, the kitchen and a stairwell and light switch after the cleaning.
- [16]Having reviewed the material including the transcript and the photographic evidence as well as the various email correspondence, I am satisfied that the evidence was capable of supporting the findings made by the Adjudicator. I consider that there is no proper basis for interfering with the finding that 10 hours of cleaning were conducted by the cleaners engaged by AirBNB Manager.
- [17]The difficulty for Mr Zarb’s case is that there was an absence of evidence as to the specific state of the property prior to the cleaning being performed by the cleaners engaged by AirBNB Manager (other than a few photographs submitted by AirBNB Manager). While the photographs submitted by Mr Zarb do show that various areas had not been completely cleaned, I consider that, in and of themselves, they do not establish that no cleaning had been performed, particularly against the background that the case for AirBNB Manager was that the property was ‘filthy’ beforehand and that the cleaning services ceased prior to completion. The Adjudicator preferred the evidence of AirBNB Manager. I consider that Mr Zarb has not demonstrated that the findings by the Adjudicator were contrary to ‘incontrovertible facts or uncontested testimony’ or were ‘glaringly improbable’ or ‘contrary to compelling inferences’.
- [18]In my view:
- (a)the appeal does not raise a question of general importance;
- (b)Mr Zarb has not raised a reasonable argument that the Decision was attended by error much less that an appeal is necessary to correct a substantial injustice caused by that error.
- (a)
- [19]For completeness, although not contained in the Grounds of Appeal, Mr Zarb also raises an issue that the Australian Business Number contained on the tax invoice the subject of the claim for cleaning is not associated with ‘AirBNB Manager’ but is associated with the registered business name ‘Sunny BNB’, and the business name extract for ‘Sunny BNB’ refers to Mr West and Ms Kater in the ‘Partner details’. In my view, nothing turns on this. As noted above, the named Applicant in the MCD Application included the names of Mr West and Ms Kater. They were parties to the MCD Application, and the Decision included their names as Applicant. Regardless of which was the correct business name, I consider that Mr West and Ms Kater were proper parties to the MCD Application.
- [20]For the reasons set out above, leave to appeal is refused and I order accordingly.
Footnotes
[1] The Appeal Application names the Respondent as ‘AirBNB Manager - Len West’ but, consistently with the Appeal Tribunal Directions, the proper Respondent should be ‘AirBNB Manager (Leonard West & Julia Kater)’. I will proceed on that basis.
[2] T1-8 line 47 – T1-9 line 42.
[3] Subsection 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). For completeness, given the Grounds of Appeal, leave to appeal would have been required in any event pursuant to s 142(3)(b) of the QCAT Act.
[4] See Saxer v Hume [2022] QCATA 25, [2].
[5] [2021] QCATA 61, [14].
[6] Bradshaw v Moreton Bay Regional Council [2018] QCATA 140, [10] per Senior Member Brown, Member Jones.
[7] Queensland v Masson (2020) 381 ALR 560, [2020] HCA 28, [119] (and the cases cited therein) per Nettle and Gordon JJ.