Chambers v Blackford[2023] QCATA 40

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   From 1 January 2020 to 30 June 2021 (‘the first lease’) the Applicant (‘Chambers’) leased residential premises at Maroochydore (‘the premises’) from David and Julie Blackford (‘Blackfords’).
2. [2]
   Upon expiry of the first lease Chambers remained in the premises as a periodic tenant.^[1]
3. [3]
   Subsequently Chambers leased the Blackfords’ premises from 28 November 2021 to 28 November 2022 (‘the second lease’).
4. [4]
   By virtue of Clause 43(2) of the first and second leases Century 21 on Duporth was authorised to conduct these proceedings on behalf of Blackfords.
5. [5]
   According to normal practice Chambers, as tenant, was required to lodge a bond with the Residential Tenancies Authority as security for due observance of the lease. It amounted to $2,200.
6. [6]
   In April 2021 the rent was increased from $535 per week to $555, as from 1 July 2021, and in November 2021 it rose from $555 per week to $650, eventually causing friction between the parties. However, Chambers remained in the premises and paid the rising rents.^[2]

Proceedings begin

1. [7]
   Friction became litigation on 19 April 2022, when Chambers applied for a ‘Tribunal order for payment of bond’.^[3] Chambers’ reasons for this action were these:

The amount of rent that was charged by the agency was greater than it should have been, as on two occasions the rent was increased contrary to the requirements required [sic] by the legislation.^[4]

1. [8]
   It is not necessary to consider whether return of the bond in full would have been an appropriate remedy if these allegations had been upheld.
2. [9]
   In response to the allegations the Adjudicator drew Chambers’ attention to three provisions of the RTA, namely sections 71, 91 and 92.
3. [10]
   Section 71 predicates a ‘substantial change’ in terms of the tenancy. It cannot be seriously disputed that an increase from $555 per week to $650, if not a change from $535 to $555, is ‘substantial’. Section 71 enables a dissatisfied tenant to ‘apply to [QCAT] for an order under this section’. But such an application ‘must be made within 30 days after’^[5] the change comes into effect. The mandatory word ‘must’ means that an application made later than 30 days must fail.
4. [11]
   Section 92 is entitled ‘Tenant’s application to tribunal about rent increase’. The tribunal may reduce or disallow the proposed increase.^[6] But once again, the tenant must apply within 30 days of receipt of notice of the increase.^[7]
5. [12]
   The Adjudicator found as a fact that Chambers made no application regarding the first increase under section 71 or section 92 within 30 days, or, indeed, at all.^[8] (As appears below, different considerations apply to the second increase.)

Second increase invalid

13. [13]
    The second increase was invalid because, as the Adjudicator held, and the landlord’s agent conceded, Chambers was not given the requisite 2 months’ notice of that change.^[9] Consequently no time limit applied to Chambers’ right to claim a refund of $95 per week with respect to the second increase. In fact, he was awarded a credit of $400.81 on that account.^[10]
14. [14]
    Beyond that, Chambers sought to recover alleged overpayments with respect to the first increase ($535 to $555). However, the Adjudicator found that, despite his denials, he was duly given notice of that increase. In other words, the judge of fact found that the increase from $435 to $455 was valid, and rejected Chambers’ submissions on that point. The Adjudicator had before her an email which, as she found, the agent sent to Chambers at 4.07 pm on 9 April 2021, advising the tenant that the rent would be $555 per week from 1 July 2021. It follows, then, that Chambers was given more than 2 months’ notice of that increase.^[11] The tribunal noted that Chambers in fact paid the new rent rate from July 2.^[12]
15. [15]
    The tribunal was satisfied that Chambers was not entitled to a refund of his $2,220 bond in full. However, in view of the invalid increase from $555 to $650, he was entitled to a refund of the $95 excess paid for several weeks, assessed as $475.
16. [16]
    It was common ground that Chambers owed Blackfords $200 (rounded to nearest dollar) for a locksmith’s services, and $650 for cleaning the premises.^[13] There was also a claim for arrears of rent, which was the basis of an earlier termination order.^[14] The tribunal rejected Chambers’ denial of that debt and accepted the agent’s evidence that it amounted to $1,444 (to nearest dollar). The refund of $475 in Chambers’ favour (see previous paragraph) reduced that debt to $969. That amount, plus the agreed amounts of $200 and $650, resulted in a payment of $1,819.19 to the lessors, and the balance of $2,220 ($401.81) in favour of Chambers, as the Adjudicator found.

Chambers’ further claim

17. [17]
    Chambers’ position is that he is entitled to $837.04, and not merely to the $401.81 as ordered by the tribunal.^[15] The difference between the parties, then, is $433.26. Chambers’ present application^[16] is accompanied by some fifty pages of submissions; proportionality is not a prominent feature of these proceedings.
18. [18]
    I turn now to the proposed grounds of appeal set out in the application: Chambers contends that the Adjudicator, in ruling that he was out of time to challenge the first increase in rent ($535 to $555) wrongly applied section 92 of the RTA, which imposes a 30-day time limit for challenges, when she should have applied section 419^[17], which prescribes a limitation period of 6 months.^[18] This submission assumes a factual finding that Blackfords’ agent did not give the notice of increase required by section 91, which materially provides that if the lessor proposes to increase the rent, the lessor must give the lessee two months’ notice in writing that states the amount of the increased rent and the date from which it is payable.
19. [19]
    That section applies to periodic tenancies as well as fixed tenancies.^[19]
20. [20]
    On 9 April 2021 the agent, after asking Chambers whether he desired a second fixed tenancy. The email continued: ‘The rent increase is $20 per week; new weekly rent $555; rent increase commencing 1/7/21’.
21. [21]
    In fact Chambers did enter a new fixed term lease, which commenced on 28 November 2021. Meanwhile he remained in the premises. When the increased rent commenced on 1 July 2021 he was, for the time being, a periodic tenant.^[20]

Findings of fact

22. [22]
    Correct application of law depends on the facts as found by the primary tribunal. Here the Adjudicator found as a fact that the agent’s email of 9 April 2021, noted above, was an effective notice of a rent increase, irrespective of whether Chambers entered a lease, or remained a periodic tenant. The indicative words: ‘The rent increase is … `, as distinct from tentative expressions such as ‘the rent proposed’ or ‘the rent should be’ are consistent with the interpretation that, if Chambers remains in occupation, the rent from 1 July 2021 shall be $555 per week. Chambers’ subsequent conduct is also consistent with that interpretation, in that he paid $555 per week from 1 July.^[21]

First increase valid

23. [23]
    In my view the Adjudicator was entitled to find that due notice of the $20 increase was lawful. Hers was a reasonable view, and I see no reason to interfere.
24. [24]
    It is important to appreciate the restraints upon an appeal court where findings of fact are concerned. Reasonable findings of fact are rarely disturbed on appeal.^[22] Questions of fact and credit are the prerogative of the primary judge; ‘that is his [or her] function’^[23]. It is not an error of law to decide against one party, or to give evidence less weight than that party thinks it should receive. It is not nearly enough for an applicant to express disappointment, or to cherish a subjective feeling that justice has not been done.^[24] Where reasonable minds may differ, a decision cannot properly be called erroneous, simply because one conclusion has been preferred to another possible view.^[25]

If there is evidence ... no error of law occurs simply because the judge prefers one version of evidence to another, or one set of inferences to another. That is his function ... Even if the evidence is strongly one way the appeal court may not interfere simply because it reaches a different conclusion … even if it regards the conclusion of the trial judge as against the weight of the evidence.^[26]

25. [25]
    Or as a distinguished Queensland judge observed:

It appears to me that a factual conclusion cannot be treated as infected by legal error unless it is supported by no evidence whatever or unless it is clear, beyond serious argument, that it is wrong. That this Court merely disagrees with a factual view of a tribunal does not show that a decision based on it is legally erroneous.^[27]

Not a retrial

26. [26]
    Most of the applicant’s lengthy submissions are really attempts to re-run the trial. In so far as they consist of additional assertions of fact, they do not comply with clause 4 of the directions made on 19 July 2022, which follow common law.^[28]

27. [27]
    However, the limited purpose of an application for leave to appeal is to see whether the primary decision is arguably and significantly affected by appellable error, or a finding that has no support in the evidence.^[29] A leave application is not an occasion to re–run the trial, or second guess’ the decision maker, as if the trial were merely a ‘preliminary skirmish’^[30]. The very purpose of the ‘leave to appeal’ provision in the QCAT Act is to ensure, so far as possible, that decisions of the tribunal are final. In the spirit and intent of the Act^[31], and in the interests of the public purse and of interests of other litigants in the queue^[32] finality is an important consideration.^[33]

Procedural error?

28. [28]
    It is regrettably common for unsuccessful litigants to complain of unfair procedure. That is a point raised by the present applicant, although it does not appear in the grounds of appeal, and was not pressed at the trial. On the contrary, the transcript shows that the Adjudicator treated Chambers patiently and courteously, even when he took the uninvited liberty of addressing her by her first name, without an honorific. Indeed she tried to assist him with the applicable law, and to guide him, with some difficulty, on the path to relevance. He was heard at much greater length than his opponent: his arguments and submissions occupy some 30% of the record to his opponent’s 6.5%. As the Adjudicator pointed out, material that he claimed was a surprise had been in his possession well before the trial.^[34]
29. [29]
    The application for leave does not disclose any arguable ground of appeal. Leave must be dismissed.

ORDER

The application for leave to appeal is dismissed.