A Hervey Bay tenant who caused what she claims – and what Supreme Court Justice Tim Carmody agreed – was only “minor” damage to a garage roller door needed to convince him on appeal that requiring her to pay for a whole new door, was “substantially unjust”.

justiceHelen Pryor had made minor contact with the door reversing out of the garage. She produced footage she claims was captured after the end of her lease, showing the unit fully operational.

The dispute over Ray White’s refusal to return her bond came before an acting magistrate who had accepted the agent’s assertion that the damage was irreparable.

Justice Carmody sitting in the appeal jurisdiction of the Queensland Civil and Administrative Tribunal (QCAT), reflected that in the absence of evidence as to the age or value of the unit at the time of entry into the tenancy, “it is hard to see how the cost of a new door is true measure of the lessor’s loss for what looks to my eye at least as relatively minor reparable damage.”

One would have thought that determination was enough for the magistrate’s decision to be overturned particularly as he went on to observe that by allowing replacement at the door the magistrate may have “inadvertently put the lessor in a better rather than the pre-existing financial position”.

“It might have been fairer,” he noted, to give the tenant some financial credit for the fact that the lessor was getting a brand new door to replace a much older unit.

But, he pondered “the whole truth about what really [his emphasis] happened or who said what to whom and if it matters, why, is rarely ascertainable with absolute certainty.”

And if what seemed to him be dubious, the magistrate’s conclusion was nevertheless – on the available facts and testimony – “open”, it should not be overturned on appeal.

QCAT disputes are intended to be resolved “in an economical way” and hurdles that appellant’s must clear reflect the public interest in the finality of litigation and “the parsimonious use of scarce judicial resources”.

As in this instance the magistrate had fairly heard and understood each party’s case and gave clear, coherent reasons as to why evidence of one has been accepted over another, Justice Carmody ruled that leave to appeal should be refused.

On that basis the Hervey Bay landlord gets to keep his brand new door paid for from Pryor’s bond.

Pryor v Ray White Hervey Bay [2015] QCATA 151 (APL115-15) Justice Carmody published 23/10/2015


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