Wysocki v Etri[2024] QCATA 104

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

What is this application about?

1. [1]
   Mr Wysocki applied for leave to appeal,^[1] and, if successful, to appeal against a decision of the Tribunal below made on 26 September 2022 that awarded him only $100.00 of the $2,740.00 bond held for his tenancy with Mr Van Wyk and others (the decision).
2. [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. [3]
   Mr Wysocki did not attend the first instance hearing which was conducted by telephone; he says because he was travelling out of telephone range. He did not file a request to adjourn the hearing, nor did he file any material by way of response, counter-application or submissions in relation to the bond dispute. Applying s 93 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) the hearing proceeded in his absence.
4. [4]
   In his application for leave to appeal or appeal Mr Wysocki says the Tribunal below wrongly accepted the tenant’s evidence that he had agreed to a break lease without penalty and seeks a rehearing of his claims for compensation for break lease (lost rent, reletting and advertising fees), cleaning and repairs.
5. [5]
   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]

6. [6]
   In this regard, 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] The appeal process is not an opportunity for applicants to have their case automatically reheard or a decision reconsidered.^[10]

Background to the residential tenancy dispute

7. [7]
   It is not disputed that:

   1. The parties entered into a General Tenancy Agreement (GTA) on 9 February 2022, the relevant terms of which were as follows:
      1. The fixed term commenced on 26 March 2022 and was to end on 23 September 2022.^[11] 
      2. Rent was $685.00 per week.^[12]
      3. The bond was $2,740.00,^[13] contributed to by Mr Van Wyk, Mr Etri and Ms House.
      4. The tenants were 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]
   2. The tenants vacated the property on 6 July 2022 having given two weeks’ notice of their intention to leave (this notice was not in evidence).
   3. Mr Van Wyk on the tenants’ behalf completed Residential Tenancies Authority (RTA) dispute resolution procedures on or by 24 August 2022.^[15]
8. [8]
   On 31 August 2022 Mr Van Wyk as one of the departing tenants brought an application for a minor civil dispute – residential tenancy dispute seeking orders that the bond be refunded to the tenants, on the understanding that Mr Wysocki intended to claim the following sums from the tenants:

   1. $3,914.00 for lost rent (vacate date to relet date);
   2. $120.00 for cleaning;
   3. $770.00 to repair damages;
   4. $250.00 for floor repair;
   5. $880.00 for reletting; and
   6. $220.00 for readvertising.
9. [9]
   On the appeal Mr Wysocki seeks these sums, plus the $365.00 appeal filing fee.    
10. [10]
    The claim was heard at Holland Park on 27 September 2022 with Mr Van Wyk in attendance. According to the transcript, the Tribunal made three attempts to contact Mr Wysocki by telephone before deciding to proceed in his absence. 
11. [11]
    Of the sums sought by the lessor, the Tribunal awarded $100.00 for oil stains to the garage that were conceded by the tenant. 
12. [12]
    The evidence before the Tribunal at first instance included:

    1. the GTA;
    2. the notice of unresolved dispute;
    3. the exit condition report;
    4. emails between the tenants and the then lessor’s agent;
    5. bundle of photographs taken 6 July 2022 and 8 July 2022;
    6. Invoice for landscaping dated 30 June 2022;
    7. Invoice for bond cleaning in the sum of $735.00 dated 5 July 2022; and
    8. Invoice for handyman services dated 1 July 2022.
13. [13]
    The respondent to the application for leave to appeal is Mr Etri, one of the tenants, but ought to have been Mr Van Wyk as the original party to the MCD application. I might have dismissed the application for leave to appeal or appeal on that basis, however, I note that Mr Van Wyk is included in the tenants’ submissions on the appeal, even though neither Mr Van Wyk nor Mr Etri appeared at today’s hearing. I proceeded to hear the application for leave to appeal on its merits in those circumstances, willing nonetheless to adjourn it should the need have arisen, which it did not.

Reliance upon fresh evidence

14. [14]
    Mr Wysocki seeks leave to rely on the following evidence that was not put before the Tribunal at first instance:

    1. Receipt for filing fee on stay application on appeal $367.00 (14 October 2022); and
    2. Invoice from Your Haven Realty for advertising and reletting fees in the sum of $1,100.00 (dated 15 August 2022); and
    3. Start date of replacement tenancy of 15 August 2022.
15. [15]
    In Alderton & Anor v Wide Bay Constructions Pty Ltd [2017] QCATA 147 at [7], Senior Member Howard said that:

1. [38]
   Fresh evidence may be allowed in appeal proceedings that proceed by way of rehearing, but only in limited circumstances. Although I am not determining the application for leave to appeal or the appeal, I observe some relevant underlying principles. The appeal process is for correcting error made by the original decision-maker. It is not an opportunity for a party to present their case again in order to achieve a different outcome, or reargue it, merely because the party does not like or agree with the outcome/decision of the original tribunal. Where required, leave to appeal will generally only be granted when there is a reasonably arguable case of error in the primary decision; reasonable prospects of substantive relief and there is a necessity to grant leave to correct a substantial injustice.
2. [39]
   The principle of finality in litigation counts against admitting fresh evidence on appeal. Parties are expected to act in their own interests and make their own case fully in the first hearing.
3. [40]
   In an application for leave to rely upon fresh evidence concerning evidence that did not exist at the time of the original hearing, to succeed, an applicant must generally show as follows:

3. a)
   That the evidence could not have been available with reasonable diligence for the original hearing;
4. b)
   That if it was allowed to be relied upon it probably would have had an important impact on the result of the case; and
5. c)
   That the evidence is credible.

16. [16]
    Mr Wysocki has not established that the new evidence was not available with reasonable diligence for the original hearing. The letting occurred on 15 August 2022 and the reletting invoice is dated the same day, which is six weeks prior to the hearing on 27 September 2022. There was ample opportunity to put this evidence before the Tribunal at first instance and Mr Wysocki was unable to explain in today’s hearing why it was not. Leave to rely on fresh evidence is refused for those reasons.

The legislative framework – the RTRAA

17. [17]
    When the matter was originally 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.^[16]

Break lease

18. [18]
    Section 420 (orders about breach of agreements) gives the tribunal jurisdiction to make an order in favour of the lessor for compensation for break lease. In making an order, s 421 says that the tribunal ‘must have regard’ to:

    1. any unpaid rent from the date of termination because of the tenant’s action and the end of the fixed term or reletting whichever is earlier;
    2. advertising expenses incurred by the lessor for reletting the premises;
    3. other expenses incurred by the lessor for work carried out by the lessor for reletting the premises; and
    4. whether the lessor has met the lessor’s duty under section 362 to take all reasonable steps to mitigate the loss or expense.
19. [19]
    In Meyer-Rochow v Lim & Anor [2017] QCATA 71 it was found that the tribunal was right to order the lessor to refund the advertising fee and the break lease fee because these would have been incurred by the lessor within twenty-nine days anyway on the ending of the fixed term tenancy, and so to charge them was unreasonable.

Tenants’ cleaning and repair obligations when a tenancy ends

20. [20]
    At the end of the tenancy s 188 of the RTRAA requires tenants 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.^[17] 
21. [21]
    In Griffin v Gini [2011] QCATA 325 at [12] 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

22. [22]
    Claims for compensation arising from a breach of the RTRAA (including of s 188) or the GTA 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.^[18]
23. [23]
    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.^[19] 
24. [24]
    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.

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

Break lease

25. [25]
    The Tribunal below did not appear to rely on the tenants’ evidence that they were given permission to break lease without penalty. The transcript of the hearing records that the learned Adjudicator did not accept that to be the case, and she in fact noted that any such previous offer had been withdrawn by the lessor at the time the tenants gave their notice of intention to leave.^[20] In giving her reasons the learned Adjudicator observed that:

Mr Wysocki apparently emailed [the tenants] to say that he wants over $3000 in compensation for rent, but he has not appeared here today so I can’t make any decisions on whether or not he’s correct.

26. [26]
    In the absence of any filed evidence or submissions on the question of mitigation, namely, the steps Mr Wysocki took to relet the premises and when he took them, there is no error by the learned Adjudicator in dismissing this claim, which was not, in any event, ever properly made; mention of it only appears in the emails filed with the tenants’ application.

Cleaning and Repairs 

27. [27]
    Although the rules of evidence are relaxed in the Tribunal, Mr Wysocki, as the party seeking compensation for breach bears the onus of satisfying the Tribunal that it is more probable than not that the tenants breached s 188 with respect to repairs and cleaning. The lack of entry condition evidence, such as a report or photographs, to establish the condition of the property at the start of the tenancy, renders it impossible for Mr Wysocki to establish the tenants’ breach at the end of the tenancy to the requisite standard of proof. His claims for cleaning and repairs are without merit for those reasons.   
28. [28]
    There is no error in the learned Adjudicator’s decision not to allow this claim as she correctly noted that “why [Mr Wysocki] requires repairs and cleaning has not really been explained”, which it was not.

Should leave to appeal be granted?

29. [29]
    For the reasons given, there is no arguable case of legal error in the primary decision and Mr Wysocki does not have a reasonable prospect of obtaining substantive relief with respect to the decision on the tenants’ application for the return of the bond. Mr Wysocki ought to consider whether his compensation claim might yet be brought as a new residential tenancy dispute because it was never brought to or decided by the tribunal in the application about the bond. This is a matter for him as it will be a challenging matter for proof after considerable intervening delay.
30. [30]
    Further, the claim is not one of general importance such as it would be in the public interest to have it determined on appeal.
31. [31]
    In the circumstances, leave to appeal is refused and, therefore, the application for leave to appeal is dismissed.