Cunningham v Qiu[2024] QCATA 140

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The applicant is the former landlord of the respondent. At the end of the tenancy, the parties were in dispute as to whether the tenant should receive her bond back. The landlord claimed that the tenant was responsible for the cost of repairing damages to the property. Amounts were claimed for repolishing a kitchen benchtop, painting some walls, replacing a door handle plate, cleaning services provided by the landlord, and fixing a damaged blind. The landlord claimed those expenses against the bond held by the Residential Tenancies Authority. The tenant denied responsibility for the payments, and lodged an application in this tribunal seeking return of her bond.
2. [2]
   A hearing was initially listed for 6 September 2023. The tenant appeared with a representative on that date, leave having previously been given. After some discussion, the landlord sought an adjournment to have time to upload photographic evidence and receipts to the tribunal’s system. The landlord explained that she was under some personal stress with a gravely ill step-father and so had been unable to prepare for the hearing. The adjudicator indicated that there was insufficient evidence before them to determine the matter and adjourned the hearing to another date.
3. [3]
   The hearing was rescheduled and the application was ultimately determined on 27 October 2023. On that date, the adjudicator ordered that the Residential Tenancy Authority pay the $1,600 bond as follows - $242.52 to the landlord, and $1,357.50 to the tenant.
4. [4]
   The landlord has applied for leave to appeal,^[1] and, if successful, to appeal against the tribunal’s decision. This is the decision in relation to the leave to appeal application.
5. [5]
   In considering whether to grant leave to appeal, the Appeal Tribunal considers whether:

   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 whether
   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]
6. [6]
   An error of law may occur where a decision maker:

   1. has made a finding of fact without probative evidence to support it, or has 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]

7. [7]
   The appeal process is not an opportunity for applicants to have their case automatically reheard or a decision reconsidered.^[8] Leave to appeal will not be granted merely because an appeal tribunal disagrees with a factual finding of the tribunal.^[9] The appeal tribunal will not usually disturb findings of fact if the evidence is capable of supporting the conclusions.

THE DECISION OF THE ADJUDICATOR

8. [8]
   The evidence before the adjudicator consisted of hundreds of pages of evidence and submissions provided by the parties. It is clear from the transcript, and I am so satisfied, that the adjudicator was at pains during the hearing to allow the parties to identify and locate the particular evidence which related to the various claims made by them. 
9. [9]
   The adjudicator noted in their decision that the property was approximately four years old, and that the tenant had lived in the property with her two children for approximately three years.
10. [10]
    The adjudicator noted that the landlord claimed for damage to a marble benchtop which the landlord had repolished at a cost of $600. The need to repolish the benchtop was not established and there was insufficient evidence to find that the tenant had mistreated the benchtop in some way. 
11. [11]
    The adjudicator concluded:

The fact is, I’ve seen the photos of the benchtop. I can see some light marking on the benchtop, but I’m not sure if that has been caused by anything but wear and tear. And in my experience in doing this – these cases, I have come across many cases where the – where people are using the benchtop as it was designed for – that is to put things on it – and there have been some marks left without anything that could be caused by tenant damage.

As I understand it, sometimes these marble benchtops do have to be repolished.  There’s no evidence here that the tenant put something hot like a hot pot on it and caused a pot mark to be on there or anything else. It seems that all she’s done is use the benchtop to put things on it. I’m not convinced that this is a matter of tenant damage. I think it’s more wear and tear and I’m not prepared to allow that claim.

12. [12]
    In relation to the claim for repainting the walls, the adjudicator noted that there was initially one claim to paint the two walls that were most significantly damaged and then, in a counterapplication, the landlord had increased the claim to paint numerous other walls in the house. 
13. [13]
    The adjudicator concluded:

Once again, I’ve looked at the photos of the exit. I can see some minor chips in the walls, I can see that there’s a couple of scuff marks that haven’t come off with cleaning. But the agent, in the exit report, hasn’t really identified any wall damage, as such. The agent has said that the walls may need some further cleaning. 

I understand that they were cleaned again; but according to Ms Cunningham, some of these marks didn’t come off. I don’t believe that marks to walls require the painting to be redone. I do agree, though, where someone’s written on a wall or something, that does involve some compensation to the owner.

So it’s difficult for me to decide what compensation is payable, but I’ve decided to allow half of the $385 towards the two walls that have been complained of. As I said, I see very little damage to these walls. I think that over a period of four years, the paint is not going to be as good as it was. I don’t see the need for repainting at all in this case.

14. [14]
    In relation to the claim for the cost of the door handle plate, the adjudicator states:

Obviously the door handle’s come away, the plate’s been lost. Ms Cunningham conceded that had the plate been left at the property, she could’ve just affixed it herself and wouldn’t have needed a callout once the tenant vacated the property. The tenant said she didn’t even know the plate had fallen off…

This was definitely a maintenance item, not a tenant damage thing. But the fact that the tenant lost the plate – I consider that the owner should be compensated for the cost of the plate. Doing the best I can, I can see you can buy a new door handle for $50, so I’m going to allow $50 as compensation.

15. [15]
    In relation to the claim for a damaged blind, the adjudicator noted that no damage was identified in the exit report but accepted that both parties agreed that the blind was damaged. There was disagreement as to the cause of the damage.
16. [16]
    The adjudicator found:

Tenant says it’s wear and tear; the owner says it’s tenant damage.  Unfortunately, once again, there’s nothing in the invoices to suggest why the – what had happened to the blind. There are no photos of the blind, so I cannot look at anything to make an assessment as whether or not I believe it’s wear and tear or tenant damage. In that case, I can’t consider that claim either.

17. [17]
    In relation to the claim for cleaning services undertaken by the owner, the adjudicator noted that the owner had charged $50 per hour. The adjudicator found:

The owner is not a qualified cleaner. I wouldn’t allow the rate at $50. There’s no detailed statement as to what needed to be done. The exit condition report seems to have been done before the tenant had two further cleans. I can’t be satisfied what the owner had to do to get the property back into the condition it was beforehand. Therefore, that claim is not allowed either.

18. [18]
    The adjudicator made no order as to payment of the tribunal filing fee.
19. [19]
    Ultimately, the Residential Tenancies Authority was ordered to pay out the bond of $1600 as follows:  $242.52 to the lessor and $1357.50 to the tenant. 

THE LANDLORD’S APPLICATION FOR LEAVE TO APPEAL

20. [20]
    In seeking leave to appeal, the landlord says that:

    1. On the hearing date of 27 October 2023, she was not in a state to attend the hearing and present her case due to significant personal challenges she had experienced in recent times – the death of her stepfather in September 2023, which followed two other deaths of significant family members in the preceding nine months. She was not across all of the significant information which had been submitted to the tribunal and was unprepared, distressed and grieving.
    2. Due to her state of distress at the hearing on 27 October 2023, after enduring personal attacks from the tenant’s representative, she “surrendered” her position as she did not want to continue in the circumstances.
    3. She had provided evidence of payments incurred (as requested by the respondent on 6 September 2023) directly to the tenant and also to the tribunal.
    4. She is an experienced landlord and has never, in over 30 years as a landlord, been involved in a tenancy dispute.
    5. The tenant had a high level of competence in the English language. If she did not, she was entitled to an interpreter but she did not need a representative. She should not have had a representative at the hearing without the consent of the other party. The representative who assisted the tenant at the hearing used the hearings to make personal attacks on the landlord, distracting the tribunal from the issues of damage to the property.
    6. The adjudicator failed to consider two important documents – the entry report dated 19 December 2019 (which showed the property in perfect condition), and a routine inspection report dated 19 October 2022 (which showed the property in an unacceptable condition). The adjudicator did not take into account the evidence of the costs and effort required to return the property to its perfect condition.
    7. The exit report and emails from the property manager to the tenant show the property in poor condition.
    8. The damage caused to the property was not fair wear and tear but was damage to the property caused by the tenant.
    9. At the initial hearing the adjudicator determined that the tenant should pay for repairs to the ripped blind. Consequently, the landlord was not prepared to revisit the issue at the resumed hearing on 27 October 2023 and did not have time to access the necessary evidence.
    10. Her claim for 21 hours of cleaning was not addressed at the hearing as she had by that time requested the process be ended.

ADJOURNMENT REQUEST BY THE LANDLORD

21. [21]
    On 23 October 2023, the landlord applied for an adjournment of the hearing on 27 October 2023. That application was refused on 24 October 2023.
22. [22]
    I have read the transcript of the hearing on 27 October 2023. I am unable to locate any further oral application by the landlord for an adjournment of the proceedings. That issue was not before the adjudicator hearing the matter.
23. [23]
    The applicant seeks leave to appeal the decision of the adjudicator dated 27 October 2023. No part of that decision relates to a refusal of an application for adjournment. That is not a matter that I will consider further in this decision.

WAS THE LANDLORD SUBJECTED TO PERSONAL ATTACKS AT THE HEARING?

24. [24]
    I am not satisfied that the landlord was subjected to personal attacks. I note that the tenant’s representative attempted during the hearing to question whether the landlord had been admitted as a solicitor, and attempted to make something of an invoice for cleaning sent by a company owned by the landlord. I note that the adjudicator advised the parties that the issues were not relevant to her decision making and requested that she not be interrupted. I am not satisfied that the adjudicator was distracted from determining the issues before the tribunal. I am not satisfied that the behaviour of the respondent amounted to a “personal attack”. The respondent raised some irrelevant matters that were not taken into account by the adjudicator in reaching the decision.

THE CLAIM FOR CLEANING BY THE LANDLORD

25. [25]
    The landlord indicated at the hearing that she did not wish to continue with her counterclaim for her time spent cleaning the apartment. The adjudicator indicated why, in any event, she would not allow the claim. That issue was dealt with appropriately at the hearing. 

THE ROLE OF THE TENANT’S REPRESENTATIVE

26. [26]
    On 4 September 2023, the tribunal granted leave for the tenant to be represented by Roger Postle. Mr Postle was present both on 6 September 2023 and 27 October 2023. The landlord did not raise an objection at the time, and the issue was not raised before the adjudicator on 27 October 2023, except to confirm that leave had been granted.
27. [27]
    The landlord seeks leave to appeal the decision of the adjudicator dated 27 October 2023. No part of that decision relates to an order that the tenant be represented by Mr Postle. That is not a matter that I will consider further in this decision.

DID THE ADJUDICATOR FAIL TO CONSIDER RELEVANT EVIDENCE?

28. [28]
    I note that during the hearing the adjudicator specifically asked the landlord what evidence and photographs she was relying on. The landlord directed the adjudicator to the evidence which she relied upon. The adjudicator prompted the landlord several times, including by saying “Ms Cunningham, can you please show me something beyond wear and tear, because so far all I’ve seen is wear and tear”.
29. [29]
    The adjudicator relied on the exit report, noting that there was nothing in the exit report to establish the need to repaint the house or in relation to the blind. The adjudicator considered the photographs submitted by the landlord and noted some small marks.
30. [30]
    The landlord claimed during the hearing that the property was in a bad state during the tenancy and that the tenant had been given a notice to remedy and ultimately a notice to leave. That evidence was before the adjudicator and considered by her.
31. [31]
    It may be that the property was in a pristine condition when the tenant began her tenancy. It may be that the property was not in a pristine condition during the tenancy. Those claims were before the adjudicator and were considered at the hearing.
32. [32]
    I am not satisfied that the adjudicator failed to consider relevant evidence.

DID THE ADJUDICATOR DETERMINE THE CLAIM REGARDING THE BLIND AT THE HEARING ON 6 SEPTEMBER 2023?

33. [33]
    The adjudicator noted at the hearing on 27 October 2023 that the exit report did not identify any issue with the blind. After requesting evidence about the blind, the adjudicator states at the hearing:

So has anyone got anything about the ripped blind? … if someone can find it for me, I’m very happy to look at it… because I want to see if it looks more like wear and tear or it looks like damage… so that’s why I’m asking for a picture of it.

34. [34]
    At the hearing on 27 October 2023, the landlord claimed that the adjudicator had indicated at the previous hearing that “it was most likely that the tenant had been the cause of the rip of the blind”. It was, however, confirmed that the adjudicator had not made a ruling on the issue. The adjudicator advised the landlord:

…unfortunately, there’s not a lot of support for your allegations because you don’t have statements from the people who did the work explaining why the work was necessary and caused by the tenant, because I can see that your photos don’t really bear out what you’re claiming here today.

35. [35]
    I am not satisfied that the claim in relation to the blinds had been determined on 6 September 2023. I am satisfied that the adjudicator provided ample opportunity for the landlord to provide evidence relating to the blind prior to making a ruling on that issue.

SHOULD LEAVE TO APPEAL BE GRANTED?

36. [36]
    The adjudicator provided the parties with ample opportunity to present their cases during the hearing, and considered the evidence before them. The reasons for the decision explain clearly what the decision is, and the basis upon which it was made.
37. [37]
    The landlord’s claim that she has not been in dispute with any previous tenants is not relevant to this dispute.
38. [38]
    The landlord submits that the adjudicator was wrong, and that the damage to the property was not fair wear and tear but was damage caused by the tenant. The adjudicator determined the issue in favour of the tenant. It is clear that the adjudicator had regard to evidence presented by the parties, and made findings on the evidence. The reasons for the decision are clear. There was sufficient evidence to justify the decision, even though the landlord says it was wrong. There is no error of law identified by the landlord. There are findings of fact which were open to the adjudicator to make based on their assessment of the evidence.
39. [39]
    The landlord disagrees with the decision of the adjudicator. That does not entitle her to have the issues reheard. The assessment of evidence is a matter for the adjudicator in the hearing. As the evidence was capable of supporting the conclusions reached, there is no basis for interfering with the factual conclusions reached by the adjudicator.
40. [40]
    I am not satisfied that there is a reasonably arguable case of error in the primary decision, or that there is a reasonable prospect that the landlord would obtain substantive relief if leave was given for the appeal to be considered. I am not satisfied that leave is needed to correct a substantial injustice caused by an error, and I am not satisfied that there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.

41. [41]
    Leave to appeal is refused.