Ramsay v Fraser[2024] QCATA 72

REASONS FOR DECISION

1. [1]
   Cindy Fraser rented a property from Rebecca Ramsay. At the end of the tenancy, Ms Ramsay claimed that Ms Fraser failed to leave the property in the same state it was in at the start of the tenancy. She filed a claim for $1759.70, being the sum of the rental bond and an additional $199.70.
2. [2]
   The Tribunal ordered that $755.50 be refunded to Ms Ramsay, with the remainder paid to Ms Fraser.
3. [3]
   Ms Ramsay now wishes to appeal that decision. She says that the learned Adjudicator should have given her the cost of a bond clean ($450) and the cost of restoring the turf around the pool ($423.50). She says that the learned Adjudicator:

   1. Proceeded with the hearing even though the original respondent was incorrect.
   2. Did not look at any of the supporting documents prior to the hearing.
   3. Failed to question the inconsistencies in Ms Fraser’s evidence. Ms Ramsay also states that Ms Fraser was not acting in good faith during the tribunal proceedings.
   4. Contradicted his own reasoning in relation to the claim for the bond clean. Ms Ramsay says that the learned Adjudicator initially rejected the claim for the bond clean because the property would require additional cleaning due to the rectification work and then rejected the claim because the cleaning had not been done.
   5. Wrongly rejected the claim for turf replacement because Ms Ramsay had a quote only and had not paid for the work to be done.
4. [4]
   Because this is an appeal from a decision of the Tribunal in its minor civil disputes jurisdiction, leave is necessary^[1]. Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error^[2].

Should Ms Ramsay be allowed to file fresh evidence?

5. [5]
   Ms Ramsay wants to file new evidence for these appeals. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Ms Ramsay have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?^[3]
6. [6]
   Ms Ramsay wants to rely on:

   1. insurance building reports, quotes, and correspondence;
   2. additional photos of the property;
   3. breach notices and emails sent to Ms Fraser; and
   4. a webpage about nutgrass infestation treatment.
7. [7]
   The breach notices and the webpage could have been obtained prior to the original hearing had Ms Ramsay been diligent.
8. [8]
   Ms Ramsay claims the remaining evidence could not be obtained before the hearing. She says that the insurance reports were not released to her until after the hearing on 12 January 2023. The report states that the inspection took place on 22 August 2022. Ms Ramsay has provided no evidence to show that she was unable to obtain the report before the hearing, or that she made any attempt to obtain a copy. It should not be admitted.
9. [9]
   Finally, Ms Ramsey wants to rely on photographs of the property, dated December 2023. She claims that she was unable to visit the property until this date due to her financial situation.
10. [10]
    The additional photos display the property’s condition approximately six months after Ms Fraser vacated. However, the Tribunal had already been provided with many images of the property immediately after Ms Fraser vacated. These additional images would have no effect on the matter’s outcome and should not be admitted.
11. [11]
    An application for leave to adduce fresh evidence is not, and should not be, an attempt to shore up the deficiencies of a party’s case at the initial hearing. Leave to file new evidence is refused.

Correctness of the original respondent

12. [12]
    Ms Fraser, in her initial application to the Tribunal, listed Ms Ramsay as both the agent for the lessor and the lessor. She did not list Ms Ramsay’s contact details, but those of LJ Hooker Bundaberg, Ms Ramsay’s letting agent.
13. [13]
    Section 39(e) of the QCAT Act states that a person is a party to a proceeding in the Tribunal’s original jurisdiction if the person is someone else an enabling act states is a party to the proceeding.
14. [14]
    Section 24 of the Residential Tenancies and Rooming Accommodation Act 2008, read as a whole, makes the lessor and the lessor’s agent interchangeable for rights and obligations under that Act. Section 206 of the RTRAA allows an agent to stand in the place of a lessor in a proceeding prescribed by regulation.^[4]
15. [15]
    As I have previously decided, the combined effect of sections 24 and 206 of the RTRAA and s 39(e) of the QCAT Act is that, whether a tenant names the agent or the lessor in a residential tenancy dispute application, the action is against the lessor^[5].
16. [16]
    There was no error in the learned Adjudicator allowing proceedings to continue with Ms Ramsay named as the respondent, particularly as Ms Ramsay was represented by her property manager during the hearing.
17. [17]
    Ms Ramsay also says that the failure to list her contact details caused her hardship and miscommunications between her and LJ Hooker, as she was not provided with sufficient notice of the proceedings or documents.
18. [18]
    Records show that LJ Hooker filed an application for miscellaneous matters in September 2022; nearly three months prior to the hearing date. Likewise, Ms Ramsay appears to have filed a search and copy request for all the documents filed in the proceedings in early October 2022, two months prior to the hearing. In my view, both Ms Ramsay and her lessor had ample notice of the hearing and enough time to prepare for it.
19. [19]
    While miscommunications between agents and their principals are unfortunate, this is not an error of the Tribunal. There has been no evidence put to the Tribunal detailing the nature of the prejudice Ms Ramsay claims she experienced and leave to appeal is refused on this ground.

Reviewing of material prior to the hearing

20. [20]
    Ms Ramsay also claims that the learned Adjudicator ignored or failed to read evidence filed with the Tribunal. This ground is not, however, supported by the transcript.
21. [21]
    The learned Adjudicator was aware of the issue surrounding the proper respondent and noted that LJ Hooker Bundaberg should have been named as such.^[6] The transcript contains statements by the Adjudicator which reference the material filed by Ms Ramsay, particularly the water services bill,^[7] and the exit inspection report.^[8]
22. [22]
    This matter was, despite the large amount of material filed, about confined issues regarding the claims brought by Ms Ramsay for the rental bond. The learned Adjudicator maintained the Tribunal’s focus on those questions throughout the proceedings and allowed both Ms Fraser and Ms Ramsay’s representatives to make comments on every claim, including the final decision.
23. [23]
    While the learned Adjudicator may not have been familiar with every document filed, their understanding of the matter and its issues was shown through their management of the proceedings. This ground cannot support a grant of leave to appeal.

Ms Fraser’s evidence and conduct

24. [24]
    Ms Ramsay further alleges that Ms Fraser did not act in good faith throughout the proceedings and that her version of events should not have been readily accepted by the learned Adjudicator.
25. [25]
    This ground is, once again, not supported by the transcript.
26. [26]
    Passages show that Ms Ramsay’s representatives were given opportunities to respond to Ms Fraser’s submissions which they did not use to challenge, or point to inconsistencies in, Ms Fraser’s submissions.
27. [27]
    In any event, it is not the Tribunal’s role to actively cross examine parties to a proceeding, particularly where evidence is not being given. The learned Adjudicator did not err in failing to do so.
28. [28]
    Likewise, Ms Ramsay’s submissions regarding Ms Fraser’s conduct do not point to an error by the Tribunal. She claims material filed was untruthful and makes a very serious allegation of fraud, alleging that Ms Fraser authored and filed a fake invoice using the ABN of a family friend.
29. [29]
    None of these issues were brought to the learned Adjudicator’s attention during the hearing, even when Ms Ramsay’s representatives were given an opportunity for comment.
30. [30]
    Nonetheless, it can be inferred the learned Adjudicator did not accept the quote provided by Ms Fraser: the claim for the removal of dog waste and weed pulling was accepted and, as is later discussed, the claim for turf restoration was denied on a question of law, not on the competing credibility of the quotes provided.
31. [31]
    Accordingly, leave to appeal on these grounds is refused.

Rejection of claims

32. [32]
    Ms Ramsay’s final grounds of appeal concerns her claims that the learned Adjudicator did not properly apply a lessor’s statutory right to seek compensation^[9] to the facts of the matter.
33. [33]
    Compensation is generally awarded to place a complainant who has suffered damage back into the same position as if the damage had not occurred.^[10] Compensation under the RTRAA is a discretionary remedy which should be exercised equitably and fairly, having regard to section 13(1) of the QCAT Act.^[11]
34. [34]
    Where what is being appealed against is the way an Adjudicator exercised a discretion of this kind, the Appeal Tribunal will not interfere unless it can be shown that the Adjudicator acted upon a wrong principle, or made mistakes of fact which affected the decision, or was influenced by irrelevant matters^[12]. Just because the Appeal Tribunal might have exercised the discretion differently is not a basis for changing the decision: it must be shown that the decision is plainly unjust or unreasonable, and involved a clear misapplication of the discretion.^[13]
35. [35]
    Ms Ramsay claimed $450.00 for property cleaning costs and $423.50 for pool yard turf restoration. Her representatives provided the Tribunal with quotes which supported the claimed amount. The learned Adjudicator denied Ms Ramsay’s claims because they found the works were “speculative”^[14] and had not been completed by the time of the hearing.
36. [36]
    The Tribunal has previously held that it is an error to require an injured party to have incurred an expense to rectify a breach before bringing the claim.^[15] It is inappropriate to restrict the right of a party to compensation under the RTRAA by analogy to an award of damages under the general law. Rather, the Tribunal should consider the injured party’s intentions and the surrounding circumstances to do justice between the parties.^[16]
37. [37]
    Ms Fraser had an obligation to leave the property in the same state it was in at the start of the tenancy.^[17] The learned Adjudicator had an entry condition report that showed the property was clean when Ms Fraser took possession. They also had photos and an exit condition report that showed that the property was not clean when she left.
38. [38]
    It was also a special condition of Ms Fraser’s lease that she keep the pool yard turf in good condition, and free from weeds and nutgrass. Photos show that, when Ms Fraser vacated, the turf contained weeds, nutgrass, and dog waste. It is a fair inference that the turf would have suffered extensive damage and required professional work to rectify the damage.
39. [39]
    Documents provided to the Tribunal showed an insurance claim for malicious damage by tenants had been lodged after Ms Fraser had vacated the property. Ms Ramsay’s representative brought the works’ nature to the learned Adjudicator’s attention during the hearing,^[18] and stated that the cleaning and turf restoration works had not taken place because Ms Ramsay was waiting until the insurance works had finished.^[19]
40. [40]
    Ms Ramsay had also filed submissions stating she had suffered financial hardship. While no evidence was filed to this effect, Ms Ramsay’s financial position would have been a relevant consideration for an equitable and fair exercise of discretion to award a remedy.
41. [41]
    The learned Adjudicator denied Ms Ramsay’s claim on the premise that ‘speculative’ claims for expenses that had not been incurred are not recoverable without properly considering the surrounding circumstances. This is an incorrect analysis, too closely bound to an award of damages under the general law. I am, therefore, satisfied that the learned Adjudicator acted upon an incorrect principle in exercising their discretion to not award compensation. Leave to appeal should be granted and the appeal allowed.
42. [42]
    Rather than refer this issue back to the tribunal for determination, it is appropriate that I consider Ms Ramsay’s claims.
43. [43]
    Images show that the property and pool turf required restoration and cleaning and were not in their original condition. Ms Fraser’s asserts that the property’s condition amounts to fair wear and tear.
44. [44]
    Deputy President Kingham DCJ, in Griffin v Gini, said:

“The phrase “wear and tear” has been common in leases and tenancy agreements for centuries (Taylor v Webb [1937] 2 KB 283, 302). 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”^[20]

45. [45]
    The images provided to the Tribunal show, in my view, Ms Fraser did not thoroughly clean the property, nor tend to the pool turf before vacating. That would not be ‘wear and tear’.
46. [46]
    The entry condition report completed by Ms Fraser upon beginning the tenancy does not show, or comment upon, a similar level of uncleanliness throughout the property.
47. [47]
    Ms Fraser failed to uphold her obligation to keep the property clean and leave it in the same condition it was in at the start of the tenancy. Particularly, the condition of the pool turf supports, in my view, a conclusion that professional work was required to restore to the turf to its original condition. I accept that this would be cheaper than having the turf removed and new turf re-laid.
48. [48]
    The cleaning and turf restoration expenses were not incurred because Ms Ramsay had chosen to wait until insurance works were completed on the property before engaging them. Those insurance works occurred because of damage suffered during Ms Fraser’s tenancy.
49. [49]
    It is plainly unreasonable, in these circumstances, to deny Ms Ramsay’s claim. It is clear that Ms Fraser had breached her obligations under the lease and the property needed to be cleaned and repaired extensively. The quotes provided facilitate this. The appeal should be allowed on this point.

Mitigation of Losses

50. [50]
    Ms Ramsay further claims that the learned Adjudicator did not properly apply a lessor’s obligation to mitigate their losses^[21] to the facts of the matter.
51. [51]
    As a lessor, Ms Ramsay was required to take all reasonable steps to mitigate her losses.^[22] She was not entitled to receive compensation for any loss or expense that could have been avoided by taking those steps.^[23]
52. [52]
    Despite not awarding the claim for cleaning, the learned Adjudicator stated that Ms Ramsay had additionally not mitigated her losses to the fullest extent. Accordingly, even if the learned Adjudicator had awarded the claims mentioned earlier, they may have been reduced significantly by their perception that Ms Ramsay failed to mitigate her losses.
53. [53]
    Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.^[24] An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.^[25]
54. [54]
    As noted, it was brought to the Tribunal’s attention that an insurance claim had been lodged and that insurance works were due to begin at the property.^[26]
55. [55]
    However, when discussing the insurance works, the learned Adjudicator repeatedly referred to them as ‘renovations’. The learned Adjudicator then reasoned that the ‘renovations’ would require further cleaning^[27] and that claiming bond money for cleaning that would have to be redone would not be mitigating her losses.^[28]
56. [56]
    The learned Adjudicator also commented that the failure to relet the property, because of the works, was also Ms Ramsay’s failure to properly mitigate her losses.^[29] In my view, the learned Adjudicator clearly did not consider the works as insurance repairs stemming from Ms Fraser’s tenancy.
57. [57]
    There is an obvious difference between renovations undertaken by a lessor to improve the value, or quality of their property and insurance works required to be taken to restore a property from tenant inflicted damage.
58. [58]
    It might not have been reasonable to delay cleaning or if the works had been renovations undertaken willingly. Likewise, not reletting the property due to voluntary works may mean the lessor has not taken all reasonable steps to mitigate their losses. However, that was not the case.
59. [59]
    The learned Adjudicator was mistaken to characterise the works as renovations. They were insurance repairs for damage to the property during Ms Fraser’s tenancy. Whether Ms Ramsay paid for cleaning before or after the insurance works, they were required because of the property’s condition after Ms Fraser’s tenancy.
60. [60]
    To draw a contrary inference about the insurance works’ nature or cause, or to ignore it as a relevant consideration was an error. It follows that the learned Adjudicator made an error of fact that influenced their finding that Ms Ramsay had not properly mitigated her losses.
61. [61]
    During the hearing, Ms Ramsay’s representative stated that the property had been unable to be re-rented due to the damage it had suffered.^[30] I am satisfied that this was the case.
62. [62]
    Ms Ramsay decided to wait until the insurance works were completed before engaging the cleaners or turf restorers. As the learned Adjudicator correctly asserted, these may have required Ms Ramsay to undertake further cleaning after their completion. It was, therefore, reasonable for Ms Ramsay to delay the engagement of a cleaner until their completion.
63. [63]
    It is difficult to see how other reasonable steps could have been taken to mitigate these claims.
64. [64]
    I am satisfied that Ms Ramsay has taken all reasonable steps to mitigate her losses. The appeal is allowed.

Distribution of the Bond and Further Compensation

65. [65]
    Section 147 of the QCAT Act allows the Appeal Tribunal to set aside a decision and substitute its own decision^[31].
66. [66]
    The Tribunal’s direction that the Residential Tenancies Authority pay to the parties the sum of $1,560.00 rental bond as follows:

    1. Ms Ramsay: $755.50; and
    2. Ms Fraser: $804.50.

should be set aside.

67. [67]
    Instead, the rental bond should be paid in full to Ms Ramsay. As the bond has likely been distributed under the previous orders, it is appropriate that Ms Fraser instead pay Ms Ramsay $804.50.
68. [68]
    As the costs of cleaning and turf restoration exceeds the remaining rental bond ($873.50), Ms Ramsay claims a further amount of $69.00. As I have accepted that Ms Ramsay’s claims should be allowed, she is awarded a further payment of money pursuant to s 420(1) of the RTRAA in the amount of $69.00.
69. [69]
    Ms Ramsay also claims the cost of filing the application for leave to appeal, the amount of $367.00. The Appeal Tribunal has a discretion to award costs against a respondent.^[32] In the present circumstances, I consider it appropriate to also award Ms Ramsay the amount of the filing fee.

Orders

3. 1.
   Leave to rely on fresh evidence is refused.

3. 2.
   Leave to appeal is granted and the appeal is allowed.

3. 3.
   Cindy Fraser shall pay Rebecca Ramsay the amount of $1,240.50, comprised of:

3. (a)
   $873.50, being the claimed costs of cleaning and turf restoration; and

3. (b)
   $367.00, being the filing fee paid for the application for leave to appeal.