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Roberts v McGrath Estate Agents Springfield QCAT 427
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Roberts & Anor v McGrath Estate Agents Springfield  QCAT 427
MCGRATH ESTATE AGENTS SPRINGFIELD
Residential tenancy matters
15 December 2021
10 November 2021
LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – where the Applicants were tenants pursuant to a residential tenancy agreement – where the back deck of the rental premises became unsafe causing the loss of a second fire exit – where the Respondent issued a notice to leave under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘RTRAA’) ostensibly without ground – where both parties treated the notice as one for non-livability under section 284 of the RTRAA – whether the Tribunal may treat the notice as for one for non-livability – whether the premises were made unliveable – whether they were made unliveable due to a breach of the lease by the lessor – where repairs could not be commenced for at least two months – whether the notice to leave was given within the one month time period prescribed by section 284(2) of the RTRAA – whether time runs from the date on which the premises are made unliveable or the date on which the lessor becomes aware that the premises have been made unliveable – where the Applicants sought compensation arising from the issue of the notice to leave including the costs of having to leave the premises at short notice and without having access to the rental bond – whether the issue of the notice out of time is a breach of the lease invoking the Tribunal’s jurisdiction to award compensation – whether the amounts claimed as compensation should be awarded.
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 42(1), s 100
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 52, s 284, s 420, s 426, s 429
Austin v Bonney  1 Qd R 114
Challands v Jackson  QCATA 330
Hobbs v PGK Pty Ltd  QCATA 156
Jones v Bartlett (2000) 205 CLR 166
Khromeenkova v PRD Robina Nationwide  QCATA 35
Self-represented by Tamika Roberts and Christopher Roberts
Dani Watson, Leanne Cebulski
REASONS FOR DECISION
Summary of claim
- The Applicants seek $4,506.95 from the Respondent arising out of a residential tenancy in relation to a premises at Redbank Plains (‘the property’). The Applicants were the tenants. The Respondent is the agent for the property. A written lease, amounting to a residential tenancy agreement as defined in section 12(1) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘RTRAA’), was entered into and expressed to commence on 21 May 2021 and end on 18 November 2021 (‘the lease’). The Application is expressed to be made pursuant to sections 429, 420, 97 and 94 of the RTRAA.
- The claim arises from damage to the back deck of the property which was detected by the Applicants during the course of the tenancy, and, according to Ms Roberts, notified initially by Ms Roberts to the Respondent by email dated 1 April 2021. The consequence of the damage was that:
- (a)the Applicants were unable to use the deck; and
- (b)the Respondent issued a notice to leave on 6 May 2021, requiring the Applicants to leave the property the same day.
- The Applicants handed back possession of the property on 24 May 2021.
- The Applicants seek compensation for the loss suffered and expense incurred in having to leave the property according to the notice to leave on short notice without access to their bond monies ($4,142.67). They also seek a refund of overpaid rent ($184.28). They seek $180 as a rent reduction for living in the property for three weeks despite the property being deemed unliveable. Finally, they seek the cost of the application fee, which in this case is $127.50.
- By the time of the hearing, the overpaid rent had been repaid, and the bond had been released to the Applicants. The Respondent agreed to pay the $180 claimed as a rent reduction. I treat that as a compromise of that particular claim and do not consider it further.
- Mr Roberts was not originally a party to the Application, but consented to being joined as an Applicant and, given his status as a co-tenant, I made an order for joinder under section 42(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
The claim arising from the notice to leave
Characterising the notice to leave
- According to the Applicants’ chronology, on 6 May 2021 the Respondent’s Ms Watson called Ms Roberts and left a message:
Hi Chris & Tamika, Dani from McGrath. I have just left you both a voicemail in regards to the back deck. We have received advice that the back deck is no longer safe. Please do not go on this. I have a handyman attend today to tape it off. I will send you both an email now with what has to happen moving forward…
- The form of the notice to leave was completed such that it took the form of a notice to leave without ground. However, the notice to leave was accompanied by the following message in what I infer is an email from Ms Watson:
Hi Tamika & Chris
Thank you for your time on the phone today.
As discussed, attached is the notice to leave as the property has become uninhabitable due to the back deck.
- In those circumstances, the notice to leave contained a defect: the basis for the notice was clearly non-livability under section 284(1)(a) of the RTRAA but it was stated to be a notice to leave without ground. Can the defect be overlooked? Under section 349(1) of the RTRAA (‘Defects in notices’), if an application is made to the Tribunal by a lessor for a termination order because of a failure to leave, the Tribunal may make any order it is satisfied it is appropriate to make in all the circumstances of the case, even though the notice to leave contains a defect. This section does not apply in this case: here, it is the tenants’ application and the application is not one for a termination order.
- The Applicants did not dispute the ground of the notice. They, like the Respondent, treated the notice to leave as one based on non-livability.
- Does the Tribunal have jurisdiction to treat the notice as a notice to leave for non-livability? Can section 429 of the RTRAA, which is referred to by the Applicants in the Application, apply here? Section 429(1) provides:
If there is a dispute between the lessor and the tenant…about an agreement, either party may apply to the tribunal for an order, and the tribunal may make any order it considers appropriate, to resolve the dispute.
- I consider that in this case there is a dispute ‘about’ an ‘agreement’ i.e. a residential tenancy agreement, for which no other express provision of the RTRAA is applicable, and the ‘general catch-all provision’ of section 429 may be utilised. The Tribunal may make any order it considers appropriate.
- It is appropriate in the circumstances I have outlined to regard the notice to leave as one based on non-livability under section 284(1)(a) of the RTRAA, and to make a corresponding order.
Was the lessor entitled to give the notice to leave?
- The next issue is whether the lessor, by the Respondent, was entitled to give a notice to leave under section 284. That section provides:
- (1)The lessor may give a notice to leave the premises to the tenant because the premises—
- (a)have been destroyed, or made completely or partly unfit to live in, other than because of a breach of the agreement; or
- (b)no longer may be used lawfully as a residence; or
- (c)have been appropriated or acquired compulsorily by an authority.
- (2)A notice to leave under this section must be given within 1 month after the happening of the event mentioned in subsection (1).
- (3)A notice to leave under subsection (1)(a) or (b) is called a notice to leave for non-livability.
- There are a number of questions which flow from the terms of section 284:
- (a)was the property made completely or partly unfit to live in?
- (b)if it was, was the property made unfit to live in because of a breach of the lease?
- (c)if that was not the case, was the notice to leave given within one month after the property was made unfit to live in?
- If the answer to any of these questions is ‘no’, the notice will have been given contrary to section 284. In that case, the final question is whether the Applicants are entitled to the compensation they seek by virtue of that fact.
Was the property made unfit to live in?
- In Challands v Jackson, Dr Forbes held, in the context of a tenant’s notice of intention to leave under the RTRAA:
Where defective housing is concerned, non-liveability is at the high end of the spectrum. Landlords’ breaches of warranty frequently fall short of that extreme. The RTRAA does not attempt to define non-liveability. Its meaning is therefore to be derived from contemporary English usage. Ultimately it is a matter of fact, degree and judgment in all the circumstances including the amount of rent payable, climatic conditions, the remediability of existing defects, the reasonable expectations of people in the tenants’ position, and the age and location of the premises.
- In Jones v Bartlett Gummow and Hayne JJ stated:
Premises will not be reasonably fit for the purposes for which they are let where the ordinary use of the premises for that purpose would, as a matter of reasonable foreseeability, cause injury…
- The Applicants sent a photograph of damage to the deck to Ms Watson on 1 April 2021 by email. It shows a section of a timber strut supporting the deck to have rotted and come away from the strut. A copy of the email was filed, although Ms Watson indicated that she did not receive it. However, for the reasons I give below, it is not necessary for me to resolve whether it was in fact received by Ms Watson.
- Two photographs of the damage were sent to the Respondent by email on 6 April 2021. In a further email on 7 April 2021 to Ms Watson, Ms Roberts stated:
The tiles are all cracked at the top of the deck as well where the wood has fallen it’s all rotten. I’m worried we are going to go threw (sic) the deck with the rain we’ve had (as the wood that had fallen is under the back deck)…
- Ms Watson gave evidence that the back deck provided a second fire exit. That was not disputed by the Applicants.
- A quotation from AAMN Building Services tendered by the Respondent for repairs to the back deck contains a note: ‘Deck is not safe until all repairs have been made’. The repairs referred to were to remove the existing decking and install new decking.
- Ms Watson also submitted a statement to the effect that on 5 May 2021, she spoke to ‘Alex’ from AAMN Building Services who confirmed he would not be able to commence the works for two to three months. Ms Watson explained at the hearing that these events occurred when there was a ‘massive trade shortage’ due to the COVID-19 pandemic. An extract from the Queensland Building and Construction Commission website was tendered, printed on 11 October 2021, which states that the Queensland residential construction industry is currently impacted by an Australia-wide shortage of building materials and skilled trades, ‘due to market forces amplified by the COVID-19 pandemic’. Unfortunately, that extract does not indicate what the position of the construction industry in south east Queensland was in April – May 2021. The Respondent’s evidence about these matters was not challenged. I accept that the works required to remedy the deck would not have been able to be completed by a qualified tradesman within two months.
- I conclude that the deck contained a dangerous defect, which compromised the safety of the entire property, where a wholesale replacement of the back deck was required to fix the defect in circumstances where it would be months before that could occur. In my view, these matters made the property completely or partly unfit to live in.
Was the property made unliveable because of a breach of the lease?
- I turn to the question of whether the property was made unfit to live in because of a breach of the lease. There was no suggestion that the condition of the deck was the result of a breach of the lease by the Applicants. Was it due to a breach of the lease by the lessor?
- Ms Watson confirmed that she inspected the property at the start of the tenancy and did not notice the damage to the deck. There was no evidence to suggest that the damage existed at the start of the tenancy. In those circumstances, sections 185(3)(a) and (b) of the RTRAA become relevant. They provide that, while the tenancy continues, the lessor must maintain the premises in a way that the premises remain fit for the tenant to live in, and must maintain the premises and inclusions in good repair. By virtue of section 52 of the RTRAA, those duties are taken to be included as terms of the lease. However, the lessor is not liable for a breach of these obligations unless it has had reasonable notice of the need for repairs.
- The judgment of Macrossan CJ in Austin v Bonney, although dissenting on the outcome of the appeal, indicates that what is reasonable notice will depend on matters of practicality, such as the availability of tradesmen. In this case, the notice to leave was issued, on the Applicants’ case, 5 weeks after the Respondent was alerted to the rotting timber (1 April – 6 May), and 4 weeks on the Respondent’s case (6 April – 6 May). However, the extent of the repairs required, combined with the shortage of trades at the relevant time, is such that even a 5 week period in April - May 2021 was not a reasonable period to complete the repairs. I conclude that at the date of sending the notice to leave on 6 May 2021, the lessor was not in breach of the lease, and would not have been in breach of the lease until at least the end of May 2021, had the tenancy continued until that time.
Was the notice to leave given within one month of the property becoming unfit to live in?
- I now consider whether the notice to leave was given out of time. The rotten timber, which made the property unfit to live in, existed at 1 April 2021. However, I consider that the Respondent did not become aware that the property was unsafe until at least 7 April 2021 when Ms Roberts sent the email expressing that she was worried about the deck failing.
- Does the one month time limit in section 284(2) run from when premises are made unliveable, or when the lessor knows they have been made unliveable?
- The first interpretation accords with the wording of the section, which does not require that the lessor must have notice that the premises have been made unfit to live in. It would have been a simple matter for Parliament to have stated that if it had been so intended. The wording may be contrasted with that in section 419(3) of the RTRAA, which states that ‘The application [to the Tribunal for an order about a breach of a term of a residential tenancy agreement or rooming accommodation agreement] must be made within 6 months after the lessor or tenant, or provider or resident, becomes aware of the breach.’
- The consequence of the first interpretation is that the lessor may lose the right to terminate the tenancy through no fault of its own, if the tenant decides not to advise of the need for repairs, contrary to its obligations under section 217 of the RTRAA, or, because the defect is latent, the tenant is not aware that the premises have been made unliveable.
- It would seem to be a rare case, however, where the lessor is not aware that the premises have been made unliveable within one month of that occurring.
- The consequence of the second interpretation, that time only runs from when the lessor knows the premises have been made unliveable, invites a level of uncertainty – should the degree of knowledge be judged objectively or subjectively? At what point would knowledge of a defect become knowledge that the premises have been made, for example, partly unfit for habitation?
- Section 284 of the RTRAA was preceded by section 158 of the Residential Tenancies Act 1994 (Qld) and before that section 14 of the Residential Tenancies Act 1975 (Qld). Those sections also allow a one month timeframe for the giving of the notice, judged from, in the case of the 1994 Act, the premises having been made unliveable, and in the 1975 Act, the date of the destruction or damage causing the premises to become unliveable. The explanatory notes for the 1994 Act and extrinsic material for the 1975 Act do not give any indication that the provisions should be interpreted with the effect that the time for giving notice starts to run from when the lessor becomes aware that the premises have been made unliveable.
- I conclude that section 284(2) of the RTRAA should be construed according to the natural meaning of the words used: time runs from the date on which the premises have been made completely or partly unfit to live in. That date in this case was (at least) 1 April 2021. The notice to leave was delivered outside the required one month period, and thus was issued contrary to section 284(2).
Is the Applicant entitled to compensation arising from the lessor’s failure to give notice in time?
- That leaves the question of whether the Applicants are entitled to compensation as a result of the issue of the notice to leave outside the required timeframe.
- The Tribunal may order compensation for a breach of a residential tenancy agreement under section 420(1)(e) of the RTRAA.
- Section 52 of the RTRAA provides, relevantly:
- (1)If, under this Act, a duty is imposed on, or an entitlement is given to, a lessor or tenant, the duty or entitlement is taken to be included as a term of the residential tenancy agreement.
- (5)This section applies even if the duty, entitlement or rule is not included as a term of a written agreement.
- I consider that section 284(2) of the RTRAA imposes a duty on the lessor to issue the notice to leave within one month of the premises having been made completely or partly unfit to live in, and by section 52 of the RTRAA, that duty is taken to be included as a term of the lease. It was breached by the lessor. The Tribunal therefore has a discretion to order compensation under section 420(1)(e) of the RTRAA.
- Alternatively, I consider that, given there is no specific provision of the RTRAA which applies to this situation, the Tribunal may make any order it considers appropriate, including for compensation, under section 429 of the RTRAA.
Determining the amount of compensation which should be paid by the Respondent
- The Applicants have provided the following breakdown of the claim for compensation flowing from the issue of the notice:
- (a)$688.55, being the value of time taken by the Applicants from their annual leave in order to move from the property to new rental premises (‘the new property’);
- (b)$70 for the hire of a trailer to move to the new property;
- (c)$287 for the lost value of a collectors’ card belonging to Mr Roberts which he had to sell in order to pay for the bond for the new property;
- (d)$997.12 for ‘cashed in’ long service leave, which was required to defray the cost of the bond for the new property; and
- (e)$2,100 being two weeks rent ($700) and bond for the new property ($1,400).
- I consider these claims in reverse order.
- Ultimately, the Applicants received their bond of $1,400 on 27 May 2021, and the Applicants were not forced to pay rent for both properties at the same time. Accordingly, the amount claimed in (e) is not recoverable.
- It might be argued that the amounts in (c) and (d) were not really lost, since the value for which the collectors’ card was sold and long service leave cashed in was recovered from the release of the bond. And yet, as concerns the collectors’ card, an opportunity to sell at a later point in time (and perhaps make a greater profit) was lost. And as concerns the long service leave, the cash value of the leave at the time it was withdrawn may not fully compensate for the actual value of the leave, which might otherwise have been taken during a much later period, by which time Mr Roberts’ rate of pay may have increased. Further, whatever may be the monetary value of the leave, Mr Roberts has suffered a loss of a right to take time off work for the period corresponding to the leave cashed in. It cannot be regained without Mr Roberts working for a longer period than he would otherwise have to.
…I conclude it is not appropriate to attempt to align or restrict the right of a party to a tenancy agreement to compensation under the Act to an award of damages by an analogy to the general law applying to damages for breach of contract or tort. Rather it is appropriate in an assessment of a claim for compensation under s 420 to consider ‘the injured party's intentions and the surrounding circumstances... in light of the underlying principles in order to do justice between the parties.’ (footnotes omitted)
- I conclude that the amounts claimed for items (c) and (d) should be awarded. I note that the need for compensation could have been avoided altogether if the lessor had released the bond at the time of the notice to leave. The lessor could have recovered compensation from any breach by the Applicants of section 188(4) of the RTRAA separately.
- The claim for $70 trailer hire was agreed to and is substantiated by a text message dated 15 May 2021.
- As to the claim for the value of lost annual leave, it might be argued that there was no actual cost incurred by the Applicants, merely a decrease in annual leave to which they were entitled. There has however been a loss of the Applicants’ time for rest and recreation for which the Applicants should be compensated. This claim should also be considered in light of the considerations referred to in Hobbs v PGK Pty Ltd, and the claim, which is supported by pay slips, should be allowed.
- In relation to both the claim for the trailer hire and the lost annual leave, it might be argued that both would have been incurred in any event, as the lease was to expire in November 2021, and it was likely that the lessor would have given a notice to leave without ground in order to sell the property. It was not disputed that the lessor tried to sell the property during the tenancy to the Applicants’ knowledge, and the property was in fact sold after the Applicants moved out. Ms Roberts’ evidence was that the Applicants moved to the new property ‘the second’ they were approved. No doubt this was to avoid paying rent for both properties.
- It does not necessarily follow that annual leave would have to be taken to move, or a trailer hired, in any event following a notice to leave without ground – in that case at least two months’ notice of the termination of the tenancy would be given, allowing for costs to be mitigated. I consider these items should be the subject of compensation.
- That leaves an amount of $2,042.67 ($688.55 + $70 + $287 + $997.12) to be paid by way of compensation under section 420(1)(e) of the RTRAA.
The claim for costs
- The Applicants have not been wholly successful in their claim – to claim the amount of the bond and two weeks rent when the bond had been released and they would have had to pay rent in any event indicates a degree of overreach. In those circumstances section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) should apply and the parties should bear their own costs.
- The Respondent (as agent for the lessor) should pay to the Applicants a total of $2,222.67 ($2,042.67 + 180.00). As this is not an insignificant sum, I consider it fair and equitable that 30 days be allowed in which to pay it.
- Christopher Roberts is joined as an Applicant.
- The notice to leave dated 6 May 2021 is deemed to be a notice to leave for non-livability.
- The Respondent is to pay to the Applicant the amount of $2,222.67 within 30 days from the date of this Order.
 The lease was in Form 18a but a full copy was not filed or tendered.
 Khromeenkova v PRD Robina Nationwide  QCATA 35 .
  QCATA 330 .
 (2000) 205 CLR 166.
 Ibid 215-216 -.
 As a full copy of the lease was not provided.
 Austin v Bonney  1 Qd R 114, 120, 121 (Macrossan CJ), 123 - 125, 127 (Thomas J), 130-131, 132 (Helman J).
 Ibid, 121.
 See also the judgment of Thomas J at 125.
 Record of the Legislative Acts, Government Printer, 1975-197, Residential Tenancies Bill, Initiation in Committee, 13 November 1975, Residential Tenancies Bill, Second Reading and Committee, 25 November 1975.
 Text message dated 27 May 2021 attached to the Application.
  QCATA 156.
 As Acting Senior Member Howe then was.
- Published Case Name:
Roberts & Anor v McGrath Estate Agents Springfield
- Shortened Case Name:
Roberts v McGrath Estate Agents Springfield
 QCAT 427
15 Dec 2021