Pihan v Sherman[2023] QCATA 84

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This is an appeal from a decision of the Tribunal dismissing the applicant’s claim for money payable by the respondent in respect of a residential tenancy matter.
2. [2]
   In September 2020 the applicant, as lessor, and the respondents, as tenants, entered into a residential tenancy agreement in respect of premises at Helensvale. The tenancy was for a period of 12 months. The rent was $630/wk in addition to electricity costs. However, the electricity was not separately metered for the rental property. The electricity cost was calculated between the two houses on the property. At the conclusion of the tenancy there was a dispute about whether the respondents had short paid the applicant for rent and electricity charges. There was also a dispute about the costs of clearing/cleaning the waste water onsite septic system as a result of the respondents depositing foreign objects into the system.
3. [3]
   The dispute could not be resolved so the applicant filed an application in the minor civil disputes jurisdiction claiming $720 for servicing of the septic system, $1,654.69 for electricity charges and $2,567.30 for arrears of rent. The respondents position was that no monies were owning for electricity or rent, and they had already paid for the servicing of the septic system because their young child put an excessive number of baby wipes down the toilet.
4. [4]
   The matter came on hearing before a tribunal adjudicator. With respect to the rent, the applicant produced a “rental ledger” which was simply a schedule of what rent was paid by reference to a table of columns headed Date, Charge/Payments and Paid. The total of the Paid column was $35,050. In addition there was extra rental payable from the end of the tenancy, holding over rent of an extra $170/wk (in addition to the $630/wk) or $114.30/day. The total rental on the applicants case was $37,617,30 up to when the respondents vacated the premises.
5. [5]
   A similar schedule was prepared for the electricity. It was up to the applicant to calculate the electricity to be charged to the respondents from the one meter that was used for the front house, the tenancy, and the rear shed. This was done by deducting the electricity used for the shed, separately metered, and the balance was payable by the respondents. Similarly, a table was prepared with headings, and recorded the electricity paid and the balance owing of $1,654.69. The applicant sought to verify this by the production of photos of the meter readings and handwritten calculations.
6. [6]
   The respondents contended that there was no week to week rental ledger that recorded debits and credits. No receipts were issued. No record of any kind was given to them during the tenancy to receipt payment for rent or electricity. Their contention was that they had paid a total of $35,950.00 for rent and $3,095.43 for electricity^[1] totalling $39,045.43.
7. [7]
   There was no independent evidence from either party to support their various positions on payments. However, in the respondent’s material the payments were somewhat sporadic and of course there was the holding over extra rental of $800/wk. The total period broken down to days was in dispute, the applicant asserts it was 404 days and the respondents say it was 399 days (plus a part day). For the purposes of the appeal, I will adopt 400 days.
8. [8]
   Doing the calculations from the material filed by both parties it does seem from the respondents schedule they only allowed $90/day, holding over rent, from the end of the tenancy when it should have been $114.30/day. This means there was a shortfall of rent for this period of 7 days of $170.30 on their own calculations. However, they also assert with respect to the electricity claim that of the total alleged to have been billed of $3,664.10 they have paid $3,095.43. Leaving $568.67 payable if the unorthodox method of billing the electricity is accepted.
9. [9]
   Essentially, the learned adjudicator was faced with an onerous task of trying to work out what if anything was owed to the applicant from their own prepared tables of payments in the absence of independent evidence. Also, the adjustment of electricity costs when two house were metered on the one meter and the adjustments were left to the applicant caused confusion. Furthermore, no receipts or acknowledgment of payments were given to the respondents as to payments made and for what. It was, it seems, all left to the end of the tenancy when the bond was in dispute. As for the septic system, the respondents did pay for some servicing and the learned adjudicator took this into account in ordering that they pay a further $350.00 to the applicant.
10. [10]
    At the end of the hearing the learned adjudicator made a finding of fact as to whether there was money owing for rent and electricity to the applicant. In his reasons he considered all of the above and the evidence given by both parties. There was no reason for him not to accept that the respondents had paid a total of $39,043.00 and that being the case the claim by the applicant that they should have paid $39,271.90 was not established. In other words the applicant, he found, did not discharge the burden of proof that a further $2,567.30 weas payable for rent and $1,654.69 was payable for electricity. His reasoning was as follows:

I am not satisfied the evidence is cogent, direct, reliable and such that the tribunal can make an order at one party’s money should be paid to another. The tribunal needs very clear, direct, cogent, reliable evidence. Where there is conflicting evidence and whilst the tribunal does not make a finding as to precisely what has or has not been paid, it is a legal matter of assessing the evidence to make a finding  that I do not have sufficient evidence to allow for a finding to be made in favour of the applicants case for rent or for electricity

11. [11]
    As I mentioned he did order the respondents to pay $350.00 for the servicing of the water treatment plant. He made this order because he could not be satisfied that the work on the septic/water treatment plant was entirely the fault of the tenant and it would require servicing from time to time in any event.
12. [12]
    Having dismissed the claim, the applicant filed an application for leave to appeal or appeal. As this is an appeal brought under s 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 in respect of a decision in a proceeding for minor civil dispute, an appeal may be made only if the party has obtained leave of the Tribunal. Leave to appeal will usually only be granted where there is a reasonable argument the decision was attended by error, or that an appeal is necessary to correct the substantial injustice caused by the error.^[2] Further in Rintoul v State of Queensland & Ors [2018] QCA 20 at [10] the Court of Appeal reiterated the general principles:

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

1. (a)
   the appeal is necessary to correct a substantial injustice;

2. (b)
   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.

13. [13]
    It is important for the applicant to understand that the appeal is not a re-hearing of the case that was originally before the Tribunal.
14. [14]
    The grounds of appeal raise issues of fairness in that the applicant did not receive the respondent’s material until late on Friday afternoon, the hearing being on Monday. Also, annexed to the application are pages of an AMP Bank statements with various entries, debits and credits. There are no obvious entries relating to the tenancy. However, it is asserted that only $37,059.41 was paid by the respondents. The applicant now says that $4,221.99 is owing by the respondents.  There is also a complaint that Ms Sherman interjected constantly and denied the applicant of an opportunity to present her case.
15. [15]
    Both parties have filed further submissions in the appeal. Apart from the fresh evidence of the bank statements, the submissions repeat and rely on the evidence before the learned adjudicator in the minor civil dispute file. As for the bank statements, despite the applicant contending they were filed, they are not on the minor civil dispute file. They were not before the Tribunal at the hearing although they were referred to by the applicant and noted by the learned adjudicator. I have read the transcript and this ground of appeal is not of sufficient gravity to warrant a finding of a denial of procedure fairness. The learned adjudicator controlled the hearing and gave both parties ample opportunity to put forward their case.
16. [16]
    Fresh evidence will not be admitted in an appeal if the evidence, the bank statements, were available at the time of the original hearing.^[3] Clearly they were available and should have been filed in ample time for the respondents to consider and understand them, therefore the fresh evidence will not be considered in the appeal. Also the learned adjudicator said, the onus was on the applicant to prove her case. She did not do this to his satisfaction. When analysing the evidence as I did above, and accepting the amount paid by the respondents, as the learned adjudicator was entitled to do there is nothing new in the appeal which would warrant granting leave to appeal under the principles stated above.
17. [17]
    Had the applicant kept proper and accurate records by a proper rental ledger and issued receipts, the outcome may have been different. There was a dispute of fact as to the payments for rent and electricity and doing the best he could on the available evidence before him, he made the finding reflected in the reasons above.
18. [18]
    No error has been demonstrated on the evidence before the Tribunal and therefore leave to appeal is refused.