Blue Fox Property Group Pty Ltd & Ors v Gledhill
[2025] QCATA 15
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- Blue Fox Property Group Pty Ltd & Ors v Gledhill[2025] QCATA 15
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Blue Fox Property Group Pty Ltd & Ors v Gledhill[2025] QCATA 15
Blue Fox Property Group Pty Ltd & Ors v Gledhill[2025] QCATA 15
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Blue Fox Property Group Pty Ltd & Ors v Gledhill & Anor [2025] QCATA 15 |
PARTIES: | Blue fox property group pty ltd (applicant/appellant) KAREN VENZ (applicant/appellant) WESLEY VENZ (applicant/appellant) v Danielle lyn gledhill (respondent) nicolas alan garcia pieragostini (respondent) |
APPLICATION NO/S: | APL324-23 |
ORIGINATING APPLICATION NO/S: | Coolangatta Claim 25/23 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 18 February 2025 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Brown |
ORDERS: | Leave to appeal refused. |
CATCHWORDS: | APPEAL AND NEW HEARING – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – QUESTION OF FACT – leave to appeal – where decision appealed on basis that evidence did not support making of orders – where appeal grounds raise questions of fact – where appellants sought to rely on fresh evidence – where adjudicator’s findings were rationally based on evidence Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(2), s 142(3), s 146, s 147 Cachia v Grech [2009] NSWCA 232 Ericson v Queensland Building Services Authority [2013] QCA 391 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Langdale v Danby [1982] 1 WLR 1123 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Spalding v Filipetto [2022] QCATA 56 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 |
APPEARANCES & REPRESENTATION: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
What is this appeal about?
- [1]This is an appeal from the decision of an adjudicator in the minor civil dispute jurisdiction.
- [2]The appellants leased residential premises to the respondents. The respondents vacated the premises after discovering that the local authority had not approved the premises for residential letting.
- [3]The appellants commenced a proceeding for a minor civil dispute claiming outstanding rent, repairs and cleaning, and a break lease fee. The respondents filed a counter application seeking to recover, among other amounts, the increase in rent they paid after vacating the appellants’ premises and costs incurred in respect of food spoilage resulting from electricity outages. Other amounts were claimed by the respondents which are not relevant in this appeal.
- [4]Following a hearing, the adjudicator made various orders. Of relevance to this appeal, the adjudicator ordered that the appellants were liable to the respondent:
- In sum of $2,615.76 for increased rent paid by the respondents under the new residential tenancy agreement for premises from the date they vacated the premises until the tenancy ended;
- In the sum of $550.00 for the loss of food resulting from electricity supply interruptions to the premises.
- [5]The appellants appeal the adjudicator’s decision.
Appeals – the legislative framework
- [6]A party to a proceeding may appeal to the appeal tribunal against a decision of the tribunal in the proceeding.[1] Leave is required to appeal a decision in a proceeding for a minor civil dispute.[2] The principles to be applied in considering whether leave to appeal should be granted are well established:
- Is there a reasonably arguable case of error in the primary decision?[3]
- Is there a reasonable prospect that the applicant will obtain substantive relief?[4]
- Is leave necessary to correct a substantial injustice to the applicant caused by some error?[5]
- Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[6]
- [7]If leave to appeal is granted, in deciding the appeal on a question of law the Appeal Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and remit the matter to the tribunal for reconsideration.[7] The Appeal Tribunal may set aside the decision and substitute its own decision only if this results in the disposition of the appeal entirely in the appellant’s favour.[8] An appeal on a question of fact or mixed law and fact must be conducted by way of rehearing.[9] The Appeal Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and remit the matter to the tribunal for reconsideration.[10]
The findings by the Adjudicator relevant to the appeal
- [8]The adjudicator found:
- The respondents vacated the premises on 9 April 2023;
- The tenancy ended on the expiry of the fixed term of the tenancy agreement on 14 July 2023;
- In the absence of, inter alia, the necessary approvals from the local authority, the premises could not be lawfully let to the respondents;
- The respondents lost refrigerated food and experienced disruption and inconvenience as a result of power outages to the premises;
- The amount of $550.00 claimed by the respondents for lost food was not unreasonable;
- The additional rent claimed by the respondents for the period from 10 April 2023 to 14 July 2023 was reasonable and reasonably foreseeable and flowed directly from the situation where the premises could not lawfully remain let for the balance of the unexpired term of the lease once the respondents ascertained the existence of the impediment (being the absence of relevant approvals from the local authority);
- It was unreasonable to expect the respondents to have found alternative premises at exactly the same rental in a rising market nine months after the subject tenancy commenced;
- There was no exactly comparable dual occupancy opportunity available at short notice;
- Rentals in the area were scarce and the respondents were unable to find a comparable property in the same suburb with the result that the respondents were required to move elsewhere after several months of unsuccessfully applying to rent various properties.
The grounds of appeal
- [9]The appellants rely upon two grounds of appeal which may be understood as follows:
- Ground 1 – the adjudicator erred in awarding the respondents compensation for the loss of refrigerated food on the basis that the evidence did not support the making of the order;
- Ground 2 – the adjudicator erred in awarding the respondents compensation for the increased rent paid on the basis that the evidence did not support the making of the order.
- [10]Both the grounds of appeal raise questions of fact.
Consideration
Ground of appeal 1
- [11]The counter-application filed by the respondents in the proceeding below set out in a relatively comprehensive way the various claims and included both written submissions and supporting documents. I do not understand it to be contentious in this appeal that there were electricity supply outages to the premises during the period the respondents were tenants. The respondents submitted that on two occasions the electricity outages lasted for three days or more resulting in the complete loss of food in the respondents’ refrigerator/freezer. The amount claimed of $550.29 was said by the respondents to be an estimate. The respondents referred to specific periods of electricity outage in January 2023 and October 2022. Before the adjudicator were various photographs taken by the respondents of what was said to be spoiled food. Also before the adjudicator was a document prepared by the respondents ‘Schedule of Lost Food – 30 January 2023’ which included an itemised list of food items with corresponding costs totalling $230.29. The document also set out a claim for $320 being an estimate of food losses in the ‘first incident’ in October 2022. This claim was not itemised. Also in evidence was an email from the respondents to the agent dated 20 January 2023 in which the respondents noted that the refrigerator had been half empty during the January 2023 power outage and fully stocked during the October 2022 power outage.
- [12]The appellants, in their appeal submissions, say various things about the itemised food loss claim prepared by the respondents. Much, if not all, of what the appellants say in their submissions is an attempt to adduce fresh evidence. Directions were made by the Appeal Tribunal regarding any application by a party to rely upon additional evidence. No application was filed by the appellants. Fresh evidence will only be permitted in an appeal if the following conditions are met: the evidence could not have been obtained with reasonable diligence for use at the hearing; the evidence would probably have had an important influence on the result the case although it need not be decisive; the evidence must be credible although not incontrovertible.[11] The appellants could have adduced the evidence contained in the submissions at the hearing before the adjudicator. I disregard the further evidence sought to be relied upon.
- [13]It was open on the evidence before the adjudicator to assess the respondents’ loss in respect of refrigerated foodstuffs in the amount awarded. The Appeal Tribunal has previously observed:
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 not normally be disturbed if they have rational support in the evidence, even if another reasonable view is available. Where reasonable minds may differ, a decision cannot properly be called erroneous, simply because one conclusion has been preferred to another possible view.[12]
- [14]There was no error by the adjudicator.
Ground of appeal 2
- [15]The subject premises formed part of a single building comprising the main residence and the subject premises which were separated by a locked door. It is not contentious in this appeal that the necessary local authority approvals had not been obtained enabling the subject premises to be let. The premises comprised two bedrooms, a living area, kitchen area, bathroom, laundry and balcony. The rental payable by the respondents was $600.00 per week. The rent included water charges, electricity charges and internet charges.
- [16]In the proceeding below, the respondents said that alternative rental premises in the same location were scarce and, after unsuccessfully applying for properties over several months, they were required to move elsewhere. Before the Tribunal was the tenancy agreement entered into by the respondents relating to the premises to which they relocated. The weekly rent was $770.00. The rent did not include electricity, water or telephone charges.
- [17]At the hearing the appellant, Mr Venz, submitted that the premises to which the respondents relocated were not comparable to the subject premises. Mr Venz submitted that there were comparable properties in the same area as the subject premises available at the time the appellants relocated for the same rent and that the appellants had chosen to relocate to a beachfront property and pay a higher rent.[13] The evidence of the appellants was that they paid an increase in rent of $170.00 per week and that this amount did not include electricity and other charges.[14]
- [18]Mr Venz gave evidence that he had obtained a residential vacancy report for the previous year prepared by the Real Estate Institute of Queensland which indicated that in the preceding six months ‘it’s been the best rental availability’ on the Gold Coast.[15] Ms Littlemore, who was appearing for the first appellant, gave evidence that in her experience there were at the time the respondents relocated comparable properties in the same area. Ms Littlemore did not ‘feel that $770 was required for them to spend in order to secure a comparable rental.’[16] When asked by Ms Gledhill whether evidence of the comparable rentals had been provided Ms Littlemore’s response was vague and unconvincing.[17]
- [19]The residential vacancy report referred to by the appellants at the hearing was not in evidence. For the reasons I have already set out, it is not an appellable error to prefer one version of the facts to another. It was open to the adjudicator to accept the evidence of the respondents that they were unable to find comparable premises in the same area. It was open to the adjudicator to find that the respondents looked unsuccessfully for a period of months before relocating to alternative premises. It was open to the adjudicator to award the respondents the amount for the difference in rent. These findings had rational support in the evidence.
- [20]Ground of appeal 2 is not made out.
Conclusion
- [21]The appellants have failed to demonstrate error by the adjudicator. There is no matter of general importance requiring a decision by the Appeal Tribunal. Leave to appeal is refused.
Footnotes
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(1) (‘QCAT Act’).
[2] Ibid, s 142(3)(a)(i).
[3]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]Cachia v Grech [2009] NSWCA 232, [13].
[5]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[6]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578, 580.
[7] QCAT Act, s 146.
[8]Ericson v Queensland Building Services Authority [2013] QCA 391.
[9] QCAT Act, s 147(2).
[10] QCAT Act, s 147(3).
[11]Langdale v Danby [1982] 1 WLR 1123.
[12]Spalding v Filipetto [2022] QCATA 56, [19]-[20].
[13] T1-40, 1-4.
[14] T1-40, 8-13.
[15] T1-40, 39-43.
[16] T1-41, 19-20.
[17] T1-41, 25-30.