Lee v Cao[2024] QCATA 132

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   This is an application for leave to appeal a decision of the Tribunal delivered on 18 July 2023.
2. [2]
   In 2022 the applicants Lee and Wong (‘the tenants’) were lessees of residential premises owned by the respondent (‘Cao”), situated at Upper Mt Gravatt, Brisbane.
3. [3]
   The tenants’ lease expired in late December 2022. Following a ‘damage’ report dated 22 December 2022 Cao applied to the Rental Tenancy Authority (‘RTA’) for a major part of Lee’s $1,960 bond^[1], and was allowed $1,254 of that amount.^[2]
4. [4]
   On 23 March 2023 the tenants applied to the Tribunal for an order that Cao refund that amount to them.^[3]
5. [5]
   The dispute was heard on 18 July 2023. The tenants disputed claims for $550 (damage to a bench) and $616 for repairs to a laminated floor. An amount of $88 for repairs to a plaster wall was conceded,^[4] while a claim with respect to a tub was disallowed.^[5] In the event the Tribunal found that Cao was entitled to damages in the amount of $1,004.^[6] After taking account of the money already paid to Cao by the RTA it was ordered that Cao pay the tenants $250 and that the RTA pay the tenants a balance of $353. The mathematics of the award is not contested.^[7]
6. [6]
   Aside from continuing disputes of fact the tenants’ claim of legal error consists of an alleged statement by the adjudicator as follows: ‘These seem to be normal wear and tear to me.’^[8]
7. [7]
   If in fact that remark was made by the adjudicator it would cast serious doubt upon his findings of liability.
8. [8]
   However, a careful perusal of the transcript of hearing shows that no stage did the adjudicator conclude that the damage for which an award was made was actually the result of fair wear and tear.  The tenants did indeed make that claim^[9] but the tribunal did not make an affirmative finding to that effect.
9. [9]
   At several points the adjudicator did pose the wear and tear question as a question that he had to decide:

[To ‘Lisa’, presumably Lee] In relation to the benchtop chips, why would they not be regarded as wear and tear? … So what I’m concerned about is, are these chips pre-existing or are they additional chips … What do you say about that?^[10]

The two matters that I have to say are whether or not the damages contained in those photographs relied on by the respondent fall into the category of being fair wear and tear.  That is to say that, within a kitchen environment, do these marks occur in the day-to-day living within the unit, or do they demonstrate some deliberate or negligent act on the part of the occupiers? … I’m not satisfied that they were there, necessarily, at the commencement of the lease.^[11]

[T]he question to be answered is whether or not it was reasonable to say that those     marks were anything other than wear and tear.^[12]

10. [10]
    Those interrogatory statements, posing, without then answering the essential issue, are by no means the same as concluding and affirming that ‘These seem to be normal wear and tear to me.’
11. [11]
    The submission that the adjudicator, in effect, affirmed the ‘wear and tear’ argument is without substance.
12. [12]
    The tenant’s other submissions concern pure questions of fact. They are attempts to re-argue and re-try issues that were the prerogative of the judge of fact. They are not appropriate to an  application for leave to appeal, which properly confines the debate to arguable questions of law.^[13]
13. [13]
    I can understand that this legal principle may be difficult for a disappointed litigant to accept, but it is one that the appeal tribunal must follow. Otherwise the trial would be reduced to a ‘preliminary skirmish’^[14] and litigation, delay and costs might continue indefinitely. Finality of litigation is a matter of considerable importance, and least in small claims in a tribunal especially designed for expedition.^[15]
14. [14]
    An application for leave to appeal is not an opportunity to reopen the trial, or to `second guess’ the primary judge’s findings of fact and credit. That is his province.^[16]
15. [15]
    It is not an appellable error to prefer one version of the facts to another, or to give less weight to one party’s case than he or she thinks it should receive. Findings of fact will rarely be disturbed if they have rational support in the evidence, even if another rational view is available.^[17]
16. [16]
    This application for leave is without legal merit, and must therefore be dismissed.

ORDER

17. [17]
    The application for leave to appeal is dismissed.