Property Works Group Pty Ltd ACN 613 232 063 v Stevenson
[2025] QCATA 24
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- Unreported Judgment
- Property Works Group Pty Ltd ACN 613 232 063 v Stevenson[2025] QCATA 24
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Property Works Group Pty Ltd ACN 613 232 063 v Stevenson[2025] QCATA 24
Property Works Group Pty Ltd ACN 613 232 063 v Stevenson[2025] QCATA 24
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Property Works Group Pty Ltd ACN 613 232 063 & Anor v Stevenson & Ors [2025] QCATA 24 |
PARTIES: | property works group pty ltd aCn 613 232 063 t/aS property works qld (applicant/appellant) johnson yung-chieh fang (applicant/appellant) v cory stevenson (respondent) kyra coombs (respondent) jessie kenneally-clark (respondent) |
APPLICATION NO/S: | APL001-24 |
ORIGINATING APPLICATION NO/S: | Q1931-23 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 12 March 2025 |
HEARD AT: | Brisbane |
DECISION OF: | Member Goodman |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW HEARING – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – leave to appeal – where tribunal accepted untested evidence by one party – where new evidence handed up at the hearing with no opportunity for the other party to respond – whether conduct of the hearing amounted to a denial of procedural fairness Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 29, s 142, s 143 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Cachia v Grech [2009] NSWCA 232 Chandra v Queensland Building and Construction Commission [2014] QCA 335 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Hempel v Richardson & Wrench Hervey Bay [2018] QCATA 170 In Work International Pty Ltd v Sunco Motors Pty Ltd [2024] QCATA 113 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Ridge v Baldwin [1964] AC 40 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 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
- [1]On 15 and 16 March 2023, the respondents (‘the tenants’) signed a lease in respect of a property managed by Property Works Group (‘PWG’). Mr Fang is the owner of the property. Rent was $675 per week and the bond was $2,700.
- [2]The lease was to commence on 1 April 2023 and end on 7 April 2024. The tenants were living in North Queensland at the time, and relied upon an entry condition report and photographs provided by PWG to inform themselves as to the state of the property.
- [3]The tenants say that when they arrived and saw the property on 21 April 2023, it was not in a fit state to live in and they were forced to find alternative accommodation.
- [4]After some correspondence between the parties, the property was relet and new tenants moved into the property on 18 May 2023.
- [5]On 15 June 2023, PWG and Mr Fang brought an application in the tribunal seeking a payment of $1,495.74 from the tenants, comprised of rent ($482.14), let fee ($715), tribunal filing fee ($148.60) and mowing costs ($150).
- [6]On 18 October 2023, the matter was heard, and the tribunal ordered that the Residential Tenancies Authority return the bond of $1,495.74 to the tenants, and that Mr Fang pay $4,049.70 to the respondents in full compensation.
- [7]
- [8]The appeal process is not an opportunity for applicants to have their case automatically reheard or a decision reconsidered.[3] In considering whether to grant leave to appeal, the appeal tribunal considers whether:
- there is a reasonably arguable case of error in the primary decision;[4]
- there is a reasonable prospect that the appellant will obtain substantive relief;[5] and whether;
- leave is needed to correct a substantial injustice caused by the error;[6] or
- there is a question of general importance upon which further argument, and a decision of the appeal tribunal, would be to the public advantage.[7]
- [9]By way of background, PWG and Mr Fang state:
- On 26 March 2023, the house was professionally cleaned to the standard of a bond clean and the gardens were attended to by a professional gardening service;
- On 28 March 2023, an employee of PWG inspected the property and took photographs and completed an entry condition report, which was emailed to the tenants on 1 April 2023;
- On 21 April 2023, the tenants contacted PWG with various complaints about the property, including about rubbish in the backyard, smashed glass, broken blinds, unsafe tiles, concrete in the driveway, bricks left at the property, light coverings missing and dirty walls and house;
- On 27 April 2023, the tenants served a Form 11 Notice to Remedy Breach on PWG. Some conversations were held and the tenants advised that they would not live in the house unless all items listed on the Form 11 were attended to. They consented to advertising for new tenants if the items were not fixed.
- On 5 May 2023, PWG advised the tenants that the work had been completed and asked them how they wished to proceed. The tenants then went to the house, found tradespeople still there, took photographs, and emailed PWG with further complaints.
- The tradespeople were due to finish working by day’s end on 5 May 2023 and any rubbish was to be cleaned by the end of that day. The only issue not rectified was a complaint about kitchen tiles which had not been able to be fixed within the timeframe and in any event the cracks were superficial and not dangerous and were not a safety issue;
- There was nothing unsafe about the state of the house, many of the complaints were in relation to cosmetic issues, and any problems were the responsibility of the tenants as they had occurred during the term of the lease;
- There is evidence to suggest that the tenants changed their minds and found somewhere else to move into, and that is the reason they terminated the lease;
- The property was clean and in good repair prior to the commencement of the lease (as per condition report). The tenants had constructive control over the property for 21 days and did not bring any issues to the attention of PWG until 21 days into the lease term.
WHAT HAPPENED AT THE HEARING?
- [10]The transcript reveals that the hearing was conducted on 18 October 2023. PWG and Mr Fang were represented by Mr Rivera, who identified himself as the property manager, and the tenants all appeared in person.
- [11]The tenants confirmed that they had not seen the property before they signed the lease, and that they relied on the property report which they claimed did not accurately represent the property. The tenants handed up black and white photographs which they say they took on 21 April 2023 and which they had previously tried unsuccessfully to upload onto the tribunal system.
- [12]The tenants advised that they had been required to pay six weeks rent in advance. They sought the refund of six weeks rent plus the bond.
- [13]At that point of the hearing, the following exchange took place:
ADJUDICATOR: Who’s your principal?
MR RIVERA: I’m the principal.
ADJUDICATOR: Yes. Well, you’ll be paying a lot of money today.
MR RIVERA: In regards to what?
ADJUDICATOR: In relation to compensation for these tenants.
- [14]After hearing further evidence from the tenants in relation to the condition of the house, the adjudicator advised Mr Rivera that he could be held personally responsible for any compensation ordered to be paid.
- [15]There was some further interaction, primarily between the adjudicator and the tenants, and the adjudicator noted that Mr Fang had not signed the tribunal application. The adjudicator then gave the tribunal’s decision:
The application concerns the payment of the tenants’ bond, rent in the sum of $482, a re-let fee for breaking the lease, the QCAT fee of $148 and mowing of $150. The tenants travelled from Far North Queensland to take possession of the property without previously viewing it and did so in reliance upon an entry condition report, which is misleading. In an example, the condition report says that there are small cracks in the tiles. It is apparent that, in fact, the tiles are broken, and I’ve given - heard evidence today that they are, in fact, standing up at the fridge, and a person going to the fridge without footwear on would have their feet cut.
The property was presented with broken glass inside and out and, in particular, at the back landing, where there were broken louvres and the property was unable to be locked upon presentation, and the broken glass was able to be stood on. The property had kitty litter, cockroaches throughout and many other matters, including a hole in an asbestos wall, which is, of course, a Workplace Health and Safety issue. I’ll refer to a group of photographs that I’ve marked with the letter A with respect to the state of the property, and, indeed, I have marked with an X the asbestos wall that was broken. This is a property which would be referred to - it has been referred to in previous cases - as a tumbledown home.
The tenants immediately, upon inspecting the property, found that they could not live there and requested that that maintenance be done. Section 185 of the Act requires that property be presented - I’ll read it in full rather than:
Lessor’s obligations are that the premises - that the lessor - and inclusions must be clean.
They weren’t:
They must be fit for a tenant to live in.
They weren’t:
The premises inclusions must be in good repair, and the lessor is not in breach of issues dealing with health and safety of persons entering the premises. The inclusions otherwise comply with the minimum housing standards, which have recently been reinforced.
The property was not presented at all in accordance with section 185. The tenants then, having not received any satisfaction with respect to their complaints, have made a formal complaint, and at that stage, work was done. The tenants were texted or messaged to say that the work had been completed, and they returned to the property. At that stage, the work hadn’t been done. The tradesmen were still in the property and, in fact, were attending to the broken louvres. However, the cockroaches were still there. The kitty litter was still there. There was still glass. The asbestos patch - the asbestos wall had been patched only. The tenants left immediately. That they saw the property the first time, and they went to live in Mount Tamborine with one of the tenant’s mother, as a result of which, the tenants lost approximately - upon their advice to me today - approximately 10,000 dollars in wages, for which a compensation application has not yet been made, but my decision in this matter today does not stop them from making that further claim.
In this matter, I am satisfied that the property was not fit to live in, and upon complaint, the only reasonable stance was to give all of their money back and let them find another property and perhaps compensate for their time missed, having been misrepresented by the agent, which I find that the agent did misrepresent the property grossly. In this matter, I make an order that the RTA pay out the sum of $1495.74 to the tenants, and that the agent - I have read section 206(3) - and that the agent personally pay the sum of 4049 and 70 cents to the tenants within a period of seven days. Thank you very much.
SUBMISSIONS OF PWG AND MR FANG
- [16]PWG and Mr Fang state that the tribunal decision of 18 October 2023 is tainted by error as:
- The adjudicator determined the matter:
- (i)Relying on untested oral evidence of the tenants in contradiction of the entry condition report;
- (ii)Relying on black and white photographs handed up during the hearing in breach of Practice Direction 4 of 2023 (paragraph 24), and which PWG did not have the opportunity to view and respond to;
- (iii)Without allowing PWG an opportunity to respond to oral submissions of the tenants.
- (i)
- When PWG was given the opportunity to make oral submissions, the adjudicator:
- (i)Did not respond to any issues raised;
- (ii)Did not seek a response from the tenants;
- (iii)Did not seek evidence to support the submissions (in breach of s 28(1)(e) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’));
- (iv)Immediately began accepting further oral submissions from the tenants.
- (i)
- The adjudicator failed to address:
- (i)Whether the works identified by the tenants in the Form 11 were valid complaints or cosmetic imperfections;
- (ii)Whether the works identified in the Form 11 that PWG was legally bound to rectify had been completed on time, disallowing the tenants from terminating the lease;
- (iii)That the Condition Report was evidence of the condition of the property at the beginning of the lease, shortly after it was professionally cleaned and pest controlled.
- (i)
- The QCAT Rules require the parties to comply with practice directions.[8] The tenants did not comply with Practice Direction No 4 of 2023 by:
- (i)disclosing material they wished to rely on at (and not before) the hearing,
- (ii)handing up black and white photographs at the hearing,
- (iii)not serving the material on the other party, prejudicing their right to prepare a response.
- (i)
- The adjudicator failed to consider that:
- (i)The Condition Report is evidence of the condition of the property;[9]
- (ii)The tenants were served with the report as required;[10]
- (iii)One of the tenants signed the Condition Report, which is reliable evidence that there was no dispute as to the condition of the property;[11]
- (iv)Two of the tenants failed to sign the condition report in breach of their obligations and in the absence of evidence to establish an extension of time to return the report;[12]
- (i)
- Where PWG complied with the legislation and the tenants either agreed with the Condition Report or failed to respond, it is a breach of natural justice to allow the tenants to dispute the condition report. The tribunal allowed the tenants to make submissions disputing the condition report in breach of s 28(3)(a) of the QCAT Act and did not explain the basis upon which it accepted the submissions instead of the condition report in breach of s 506(1) of the RTA Act.
- Section 48 of the QCAT Act allows the tribunal to investigate whether the tenants had found another place to live, and contrived the complaints about the house in order to break the lease.
- The tribunal must observe the rules of natural justice, has a duty to act fairly and according to the substantial merits of the case, and must ensure, as far as is practicable, that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts;[13]
- The tribunal must allow a party reasonable opportunity to call or give evidence, examine witnesses and make submissions.[14]
- The tribunal:
- (i)Failed to call evidence of a high enough standard to overcome the weight that ought to have been given to the Condition Report;
- (ii)Allowed the tenants to hand up material in breach of Practice Direction No 4 of 2023 and rule 45(2)(c) of the QCAT Rules;
- (iii)Unfairly favoured the tenants’ oral submissions over the applicants in breach of s 28(3)(e) of the QCAT Act;
- (iv)Ignored the evidence that the applicants complied with the law and the tenants did not;
- (v)Failed to provide the opportunity to raise the issue of the timing of the tenants’ new lease.
- (i)
- The adjudicator determined the matter:
DECISION OF THE TRIBUNAL
- [17]I must determine whether the tribunal afforded procedural fairness to the parties. In conducting hearings, the tribunal is obliged to observe the rules of natural justice, but must also act with as little formality and technicality as the legislation, and proper consideration of the matters before the tribunal, permit.[15] The tribunal must also ensure that each party to a proceeding understands its practices and procedures.[16] Procedural fairness requires that the tribunal adopt fair procedures which are appropriate and adapted to the circumstances of the case. Each party must be given the opportunity to be heard.
- [18]Hearings in the minor civil disputes jurisdiction are conducted in a difficult environment and are to be resolved by a procedure which is simple, quick, inexpensive and final. Adjudicators work under time pressures, and unrepresented parties often have difficulty presenting relevant evidence and supporting documentation. Adjudicators may be called upon to clarify matters by asking questions of the parties or witnesses but must remain impartial, and cannot give the impression of giving an advantage to one party over the other. To do so would be to fall into error by failing to ensure procedural fairness.
- [19]The issue of procedural fairness was discussed recently in the appeal tribunal decision of In Work International Pty Ltd v Sunco Motors Pty Ltd [2024] QCATA 113, where the tribunal stated
The Tribunal is to deal with matters in a way that is accessible, fair, just, economical, informal and quick: section 3(b) of the Queensland Civil and Administrative Tribunal Act 2009. That said, “the requirements of a fair hearing are not to be sacrificed to achieve economy, informality and speed”.[17]
The Tribunal had an obligation to afford the parties procedural fairness. This appeal is concerned with the fairness of the procedure adopted, not the fairness of the decision produced by that procedure.[18]
- [20]In considering interventions by the tribunal at the hearing, it was noted:[19]
The decision on whether the point of unfairness has been reached must be made in the context of the whole trial and in light of the number, length, terms and circumstances of the interventions. That the hearing was imbalanced, with only questioning of one party, is only a part of the picture. The way those questions unfolded showed the Tribunal Member’s deep scepticism about In Work’s case. In my respectful view, the line of questioning went beyond seeking clarification, or testing the arguments to assist the Tribunal’s consideration… Unfortunately, the competing arguments were not debated before the Tribunal Member because the hearing went off in a particular direction and never turned back. The competing arguments not having been aired and tested, the true answer remains unknown.[20]
- [21]I am satisfied that, in this instance, the decision is affected by a number of issues. It is not clear why, when the adjudicator had indicated at the hearing that an order would be made against Mr Rivera personally for $4,049.70, the decision of the tribunal issued on 18 October 2023 contained an order that Mr Fang pay the tenants $4,049.70.
- [22]I am satisfied that the tenants did not provide a copy of documents they wished to rely on either to the tribunal or PWG and Mr Fang, as required by QCAT Practice Direction No 4 of 2023. Those documents (photographs) were then relied upon by the tribunal in reaching its decision without affording PWG and Mr Fang the opportunity to consider and respond to them. I am satisfied that relying on the photographic evidence in these circumstances amounted to a breach of procedural fairness.
- [23]I am satisfied that the intervention by the adjudicator went beyond seeking clarification, or testing arguments to assist the tribunal. As noted above, the minor civil dispute jurisdiction is a high volume jurisdiction and that must be acknowledged in any examination of the conduct of a hearing. With respect, I am however satisfied, on balance, that PWG and Mr Fang were not afforded the same opportunity afforded to the tenants to put their evidence before the adjudicator, outline their case, and to challenge the evidence relied upon in reaching a decision.
- [24]I have found that PWG and Mr Fang were denied the opportunity to present their case and to properly address the learned adjudicator regarding evidence presented by the tenants. Leave must, therefore, be granted as denial of procedural fairness is an error of law.
- [25]Leave to appeal is granted, and the appeal is allowed.
- [26]I make no comment or finding as to the likely outcome of the application when the matter is reheard. The appeal is allowed on the basis that Mr Fang and PWG were denied the opportunity to prove their case. Whether they are able to do so at the rehearing is a matter for the adjudicator to determine.
- [27]If the parties wish to pursue other arguments raised on this appeal file, and/or provide new evidence, they should do so on the tribunal file Q1931-23. Documents filed on the appeal file will not be transferred to the original tribunal file and it is the responsibility of the parties to ensure that all evidence they wish to rely upon is placed before the tribunal hearing the matter, and that they are prepared to make submissions at the hearing.
Footnotes
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 143 (‘QCAT Act’).
[2]QCAT Act, s 142(3)(a)(i).
[3]Hempel v Richardson & Wrench Hervey Bay [2018] QCATA 170 [14].
[4]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[5]Cachia v Grech [2009] NSWCA 232, 2.
[6]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[7]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, 577, 580.
[8]Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 45(2)(c).
[9]Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 506(1) (‘RTA Act’).
[10]RTA Act, s 65(2).
[11]RTA Act, s 65(3).
[12]RTA Act, s 65(3).
[13]QCAT Act, s 28.
[14]QCAT Act, s 95.
[15]QCAT Act, s 28(3).
[16]QCAT Act, s 29.
[17]Chandra v Queensland Building and Construction Commission [2014] QCA 335.
[18]SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152.
[19]In Work International Pty Ltd v Sunco Motors Pty Ltd [2024] QCATA 113.
[20]In Work International Pty Ltd v Sunco Motors Pty Ltd [2024] QCATA 113.