Small v Parnell[2024] QCATA 93

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Procedural History

1. [1]
   By minor civil dispute number 939-22, Mr David Small as applicant sought orders for repayment to him of a $500.00 bond and $500.00 by way of damages for breach of a contract whereby he became a lodger or boarder at premises, the tenant of which was Ms Anna Parnell, the respondent.
2. [2]
   The application was heard in Brisbane via teleconference by an adjudicator on 23 May 2022. After canvassing the real issues raised despite the plethora of material the parties had filed, the adjudicator determined that within 14 days the respondent pay to the applicant the sum of $368.57.
3. [3]
   From that decision, the applicant filed an application for review or reopening or to correct a decision which was refused on 20 July 2022.
4. [4]
   The applicant then, within the 28-day period prescribed, filed an application for leave to appeal on 5 July 2022.^[1]
5. [5]
   Pursuant to directions made by Senior Member Howard on 29 July 2022, the parties were to file submissions in relation to the decision of the adjudicator detailing the alleged errors of fact or law made by the adjudicator and any submissions in support of the application for leave to appeal.
6. [6]
   Those matters were to be completed together with any application for leave to rely on further evidence by 27 September 2022. No such application for further evidence was ever filed and by the further directions of Acting Senior Member Fitzpatrick made 3 November 2022, the parties were given until 23 December 2022 to have complied with the earlier directions from July and to file any application for an oral hearing if they so chose.
7. [7]
   By directions made by Member Lember on 30 May 2023, the application for leave to appeal or appeal was directed to be heard and determined on the papers without an oral hearing.
8. [8]
   The applicant on 14 June 2023 filed an application for miscellaneous matters which was determined on 2 August 2023 by Member Lember. The Member granted the application which was to have the hearing of the application for leave to appeal or appeal by way of an oral hearing.
9. [9]
   On 20 June 2024, the respondent filed an urgent application to attend the hearing by telephone. It was supported by legitimate medical reasons and I made a direction on the papers that day granting her leave to attend the hearing by video conference via Microsoft Teams.
10. [10]
    At the commencement of the hearing on 21 June 2024, it became apparent that the respondent did not have the technology to join the hearing by Microsoft Teams and I granted her instanta leave to appear by teleconference. A formal direction to that effect was issued after the conclusion of the hearing.

Factual Background

11. [11]
    From 20 or 21 November 2021 to 31 January 2022 the applicant resided at the premises rented by the respondent at 40/1 Residences Circuit, Pimpama.
12. [12]
    Precedent to him taking occupation of one room and sharing a kitchen and bathroom with the respondent and her other boarder or lodger, he paid a $500.00 bond.
13. [13]
    That bond was not paid by the respondent to the Residential Tenancies Authority.
14. [14]
    The applicant’s case below was that he had actually moved into the premises on a Sunday, being 21 November 2021 because that was the first night that he slept in the room he had rented.
15. [15]
    His case was also that he had paid his first week’s rent late that Sunday evening but that because of daylight saving time being applicable in New South Wales, the respondent may only have received the funds into her account in the very early hours of Monday, 22 November 2021.
16. [16]
    Circumstances during the relatively short period of occupation of the room by the applicant as indicated in the material were not always pleasant and matters apparently came to a head on Sunday, 30 January 2022.
17. [17]
    At that time the Queensland Police were called and arrived at the premises on Monday, 31 January 2022. They indicated to the applicant that he should depart the premises and move out.
18. [18]
    By his application to the Tribunal, the applicant sought reimbursement of the bond. In addition, he claimed that he was entitled to two weeks’ notice. That claim fell away before the adjudicator in the circumstances presented by the parties.

Grounds of Appeal

19. [19]
    There are two places in the material where the applicant has articulated his grounds of appeal. The first articulation of grounds of appeal was the three ‘reasons’ he gave on 9 June 2022 as follows:

1. As a measure to bring the Respondent back to QCAT for an explanation. There has to be a legal consequence for not filling a bond with the Residential Tenancies Authority.
2. That the sum decided by the adjudicator did not reflect matters I wished to raise before the call disconnected and which are contained in the email below.
3. I would like to know that the call disconnection was a technology fault and not a practise of the adjudicator because all parties should have a right to respond to matters raised. I’m sure there is a recording.

20. [20]
    The actual application for leave to appeal or appeal required the applicant to not only provide the orders he sought on an appeal but also the reasons for them.
21. [21]
    The orders he sought were in Part E Section 1 of his handwritten application and were as follows:

139 Ms Parnell did NOT deposit bond to the R.T.A.

381H Ms Parnell became aggressive upon my giving my notice to leave. I was speaking with my daughter on my phone in my room when Ms Parnell entered without notification with a vociferous tone & manner. My daughter advised me to call the police and I rang 000. The police officers arrived next morning. I was asked by the female officer, why I would want to stay and longer than I have to. After the police left, I started to pack my belongings. Ms Parnell began then placing items on the front path without my consent.

22. [22]
    In addition at Part E Section 2, he again spelled out his claims as follows:

419 $500

137 $500 as per ‘Part E’ Section 1 Text message re two weeks notice to leave. This right in our agreement was violated.

23. [23]
    The reasons for seeking those orders are in Part E Section 4 of the handwritten application and were as follows:

Please see ‘Part E’ Sections 1 and 2.

It is legislation that Ms Panell [sic] was required to deposit my bond to the R.T.A. She did NOT do this. I tried to negotiate with her an outcome for the bond sum to be returned to me but she refused, I then contacted the R.T.A. for an adjudication to resolve the matter by mediation/conciliation. I have no feedback Ms Parnell even responded to the R.T.A. The very fact that she became aggressive when I gave her my two weeks notice to leave requiring me to call the police fearing for my safety & her unauthorised removal of my belongings by her to the front path of the unit caused me considerable distress. I am as well seeking the $500 for the right of two weeks notice being breached because Ms Parnell’s threatening domestic violence for which I had called 000 for police to attend. That two weeks required me to ‘couch surf’ and sleep in my car while finding new accommodation.

24. [24]
    What appears to flow from the grounds as lodged raises questions of fact only and not law. Accordingly, leave to appeal is required.^[2]
25. [25]
    The appeal jurisdiction of the Tribunal is not generally the proper forum to receive evidence and dispute the facts.^[3] As Member Davies and I accepted in Kotynski v Peter Ernest James Rogers t/a Rogers Pools & Anor,^[4] (adopting the respondents’ submissions), leave to appeal will ordinarily only be granted:

    1. when a question of general importance upon which further argument in a decision of the Appeal Tribunal is to the public advantage;
    2. there is a reasonably arguable case that the primary decision maker made an error;
    3. there are reasonable prospects that the applicant would be granted orders in their favour; and
    4. to correct a substantial injustice to the applicant caused by error.
26. [26]
    At the commencement of the hearing I enquired of the applicant whether the monetary order made by the adjudicator had been paid by the respondent. He asserted it had not. I then enquired of the respondent as to whether she had paid the monetary order and she advised she had not as she did not have the applicant’s bank details. The applicant refuted that.
27. [27]
    The applicant when asked stated that he had not enforced the monetary order in the Magistrates Court because it would have cost him more money.
28. [28]
    In such circumstances I asked the applicant to provide orally his bank details, which he did. The respondent noted them and repeated them on the telephone.
29. [29]
    The respondent at this juncture said she wanted to pay the monetary order to have the matter concluded and asserted that she would pay it ‘today’.
30. [30]
    During the course of the hearing the respondent advised that she had been able to access her internet banking and the monetary order in the sum of $368.57 was deposited into the applicant’s bank account.

The Parties’ Contentions

31. [31]
    The applicant’s contentions were in effect a repetition of what he had submitted to the adjudicator.^[5] The decision of the adjudicator had been to make a monetary order for return of the $500.00 bond less a deduction for two days’ rent ($71.43) and an allowance for cleaning of the room ($60.00).
32. [32]
    The adjudicator deducted from the $500.00 the sum of $131.43 to arrive at the monetary order made.
33. [33]
    The applicant’s two contentions were that he did not move into the premises until the Sunday and paid rent that day electronically and because his occupation of the premises was terminated by the police he was refused the opportunity to clean the room which he occupied and that it was unjust for him to have to pay for the cleaning amount allowed by the adjudicator.^[6]
34. [34]
    The respondent’s argument was that she accepted the adjudicator’s decision.

Adjudicator’s Reasons

35. [35]
    The adjudicator in the ex tempore reasons given at the conclusion of the hearing found that the applicant had moved into the property on Saturday, 20 November 2021 by placing personal possessions in the room and accepting a key. As to that finding, I do not think there is an arguable case on appeal. The finding was open on the evidence that the adjudicator accepted and it had the consequence of the applicant owing at least one day’s arrears of rent.
36. [36]
    As to the second day’s rent allowed by the reasons, the applicant continued to reiterate his submission that the adjudicator misunderstood electronic banking but what the adjudicator actually found was that as he had moved out of the premises on a Monday, the two days’ rent was for the Saturday where he took possession of the room although not physically sleeping in it and the Monday that he had moved out. They were the odd two days not constituting part of a week. Similarly, in my view, the adjudicator’s finding in this regard was supported by the evidence and does not evince appellable error.
37. [37]
    As to the claim for cleaning and painting, I have detailed above the dismissal of the claim for painting and the adjudicator held that the claim for $120.00 for cleaning should be halved to allow for two hours at $30.00 per hour, noting that it was a shared house with shared use of bathroom and kitchen facilities. Again, it is my view that this finding was open to the adjudicator and does not constitute appellable error.

Conclusion

38. [38]
    As noted at paragraph [25] above, the authorities indicate that there are four matters for me to consider in relation to a grant of leave to appeal.
39. [39]
    First, it is my view that there is no question of general importance for further argument in the Appeal Tribunal which is to the public advantage as the question relates solely to a very modest money sum as a private matter between the applicant and the respondent.
40. [40]
    As indicated above, it is my view that there is not a reasonably arguable case that the adjudicator made an error as the critical findings to which I have referred which were supported by the evidence accepted by the adjudicator.
41. [41]
    Accordingly, there are no reasonable prospects that the applicant would be granted the orders he seeks in the application for leave to appeal or appeal.
42. [42]
    Finally, despite the applicant insisting that he had been ‘punished’ by the adjudicator, given that the amount in dispute is $131.43, even if the adjudicator’s findings were wholly erroneous, I do not think that a ‘substantial injustice’ to the applicant would have been caused by such error.

Orders

43. [43]
    It is ordered that:

    1. The application for leave to appeal be dismissed.