O'Neill v LJ Hooker Robina[2023] QCAT 236

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Application

1. [1]
   On 28 November 2022 the applicants, Mr John O'Neill and Mr Mark Smith, made application to the Tribunal for payment to them of $20,113.00, calculated as follows:

Rent refund – Ceiling issues $14,753.00

Rent refund – Jetty issues $  4,435.00

Rent refund – Electricity issues $     925.00

$20,113.00

2. [2]
   The applicant filed with the application numerous documents, including:

1. (a)
   residential tenancy agreement between the lessor, Ms Jacqueline Milne, and the applicants dated 21 March 2022 (tenancy agreement);
2. (b)
   notice to remedy breach dated 10 August 2022 (first notice to remedy breach);
3. (c)
   notice to remedy breach dated 20 October 2022 (second notice to remedy breach);
4. (d)
   notice of intention to leave dated 27 November 2022 (notice of intention to leave);
5. (e)
   emails sent and received by the parties between 2 August 2022 and 27 November 2022;
6. (f)
   timeline; and
7. (g)
   several photographs.

Counter-application

3. [3]
   The respondent, LJ Hooker Robina, on 9 January 2023, filed a counter-application claiming $4,438.24, calculated as follows:

Rent (6 December 2022 – 18 December 2022) $2,507.07

Water consumption charges to 6 December 2022 $  206.17

Break lease fee, including GST $1,485.00

Pet odour treatment $  240.00

$4,438.24

4. [4]
   The documents filed by the respondent with the counter-application include:

1. (a)
   invoice Jewel Carpet Cleaning & Pest Control to the respondent dated 21 December 2022 for pet odour treatment; and
2. (b)
   particulars of the orders sought and reasons.

Tenancy agreement

5. [5]
   The premises may be described as a prestige rental property.  The rent payable under the tenancy agreement was $1,350.00 per week.  Features of the premises included 4 bedrooms, 2 bathrooms, a kitchen, inground swimming pool, ducted air conditioning and a jetty and pontoon.
6. [6]
   The tenancy agreement was for a fixed term starting on 25 March 2022 and ending on 23 March 2023.  The rental bond is $5,400.00.

First notice to remedy breach

7. [7]
   The first notice to remedy breach was given by the applicants to the respondent on 10 August 2022.  The details of the breach are in the following terms:

The property manager has failed to organise or keep on top of repairs to the property within a timely manner, some of which are a danger to our safety.  Item 1. Dishwasher not installed properly.  When dishwasher was installed in July it wasnt installed correctly and protrudes from the bench.  Newman’s said they would return to fix this as there is a risk that it could be pushed back and damage the pipes causing flooding.  Item 2. We have been waiting since we moved into the property for the water damaged ceiling to be fixed which still remain damaged.  Item 3. There is a dangerously large hole in the runway of the jetty and the carpet is tearing which is causing a tripping hazard.

8. [8]
   The date by which the breach must be remedied specified in the notice is 19 August 2022.

Second notice to remedy breach

9. [9]
   The second notice to remedy breach was given by the applicants to the respondent on 20 October 2022, about two months after the first notice.  The details of the breach are in the following terms:

- Water damaged ceilings in spare room 1, laundry and garage remain unremedied since 14 March 2022.

- Damage to jetty, big hole in cement plate and carpet is torn and become a tripping hazard.  Unremedied since 29 July 2022.

- No risk assessment performed to ensure the safety of the jetty.

- Unable to use certain lights at property as it keeps tripping the switchboard and has to be reset manually.  Asked for electrician to attend property.

- New water damage forming on ceiling in hallway by light and 2nd spare room by air vent.

10. [10]
    The notice specified 27 October 2022 as the date by which the breach must be remedied.

Notice of intention to leave

11. [11]
    On 27 November 2022 the applicants gave to the respondent a notice of intention to leave on the ground of unremedied breach.  The date specified in the notice by which the applicants intend to vacate the premises is 5 December 2022.  They did so on that date.

Hearing

12. [12]
    The proceeding was heard by the Tribunal on 14 December 2022 and 31 January 2023.  The applicants appeared in person.  Mr Holland, the Head of Property Management, LJ Hooker Property Hub, appeared on behalf of the respondent.

Applicants’ evidence

13. [13]
    On 25 March 2022 the applicants entered possession of the premises.  The ceilings of the spare room, laundry and garage were water damage.  They were informed they would be repaired “… in the first few weeks.”
14. [14]
    The dishwasher stopped working.  The respondent was notified, and a new dishwasher was installed on 19 May 2022.  It protruded from under the bench.  The applicants were told by the tradesperson not to push it back because doing so might damage a pipe behind the dishwasher.  The tradesperson said he would return to reinstall the dishwasher.
15. [15]
    The applicants, on 29 July 2022, submitted to the respondent an urgent maintenance request to repair the jetty and pontoon.  The concrete sheeting below the carpet on the walkway had broken leaving a large hole.
16. [16]
    On 30 October 2022 the electricity to the power outlets in the kitchen failed.  An electrician rectified the fault the next day.
17. [17]
    The repairs to the jetty were completed on 18 November 2022.

Respondent’s evidence

18. [18]
    The newer watermarks on the ceilings, Mr Holland stated, were caused by the applicants “… misuse of the ducted air conditioner running temperature too low.”
19. [19]
    The notices to remedy breach are invalid, he asserted, because the grounds are the opinions of the applicants, not an approved tradesperson.
20. [20]
    The temporary repairs to the jetty were delayed by the applicants.
21. [21]
    The faulty lights were reported by the applicants to the respondent on 25 April 2022.  An electrician repaired the fault.
22. [22]
    The failure of the dishwasher was reported by the applicants to the respondent on 3 May 2022.  It was replaced on 27 July 2022 but could not be fully pushed back under the bench because of an obstruction.
23. [23]
    On 8 July 2022 a broken tile on the roof of the premises was repaired.  The lessor authorised the repair of the ceilings of the bedroom and laundry but not the garage.
24. [24]
    The applicants notified the respondent the jetty required repair on 29 July 2022.  Temporary repairs were arranged on 5 October 2022.  The repairs were completed on 23 November 2022.
25. [25]
    On 29 September 2022 the respondent offered the applicants early termination of the tenancy agreement.  They refused the offer.
26. [26]
    Mr Holland stated the respondent arranged repairs promptly.  Any delay was because of the unavailability of tradespersons.

Discussion

Applicants’ claims

27. [27]
    Introduction: The applicants claim a refund of a percentage of rent for the respondent’s failure to repair the ceilings, being without the use of the jetty and pontoon for a period and the failure of the respondent to repair the lights.  The Tribunal is not able to order a retrospective reduction in rent for loss of amenity or standard of the premises.^[1]  It can, however, make an order for compensation under section 420(1)(e) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act) for breach of the tenancy agreement.  One approach adopted by the Tribunal is to calculate the compensation as a percentage of rent.
28. [28]
    Ceilings: The condition of the ceilings in the spare room, study and garage existed at the start of the tenancy.  The applicants state they were told by the respondent they would be repaired in the first few weeks.  I accept their evident.
29. [29]
    Further water damage to the ceilings, the respondent states, was caused by the applicants’ “misuse” of the ducted air conditioner.  The misuse is said to be operating the air conditioner at low temperatures causing condensation on the ventilation ducts.
30. [30]
    The ceilings were not repaired prior to the applicants vacating the premises.  The respondent filed a quotation for the repairs.  It is dated 29 November 2022, a short time before the applicants vacated the premises.  A note on the quotation records it being approved by the lessor on 30 November 2022.
31. [31]
    Mr Holland described the condition of the ceilings as “cosmetic”.  In my opinion, it was much more.  As I have said, the premises are a prestige rental property commanding a high rent.  The ceilings were unsightly and should have been repaired within the first few weeks, as stated.  The evidence shows the respondent did not obtain a quotation for the repairs until shortly before the applicants vacated the premises.  The delay in carrying out the repairs cannot be blamed on the unavailability of tradespersons.
32. [32]
    The applicants, in my opinion, are entitled to compensation for the ceilings.
33. [33]
    The applicants claim compensation equal to 30% of the rent for the time they occupied the premises (255 days).  In my opinion, the percent is too high, and the appropriate period is from two weeks after the applicants entered into occupation of the premises (a reflection of the few weeks stated by the respondent at the start of the tenancy) until the date the applicants vacated the premises, 241 days.  An appropriate percentage for calculating compensation, in my opinion, is 5% of the rent.  I will order that the respondent pay to the applicants compensation for the ceilings in the sum of $2,317.60.
34. [34]
    Jetty: The jetty and pontoon are significant inclusions with the premises.  The hole in the jetty was reported by the applicants to the respondent on 29 July 2022.  It was unsafe and could not be used until 18 November 2022 when repairs were completed.
35. [35]
    The documents filed by the respondent show a quotation for the repairs was obtained on 10 August 2022.  I accept the respondent’s evidence it arranged temporary repairs to the jetty on 5 October 2022.  The tradesperson, however, was unable to gain access to the property.
36. [36]
    I am of the opinion the applicants are entitled to compensation for not being able to use the jetty and pontoon.
37. [37]
    The applicants claim compensation equal to 20% of the rent for the period from the date the damage was reported, 29 July 2022, to the date the repairs were completed, 18 November 2022.  The percentage, in my opinion, is too high and the period too long.  An appropriate percentage is 10% of the rent for the period from the date the damage was reported until the temporary repairs might have been carried out but for the tradesperson being unable to gain access to the property, a period of 69 days.  I will order that the respondent pay to the applicants compensation of $1,327.10 for the jetty.
38. [38]
    Lights: Switching on certain lights in the premises tripped the circuit breakers.  The fault, the applicants state, was reported by them to the respondent on 24 May 2022.  The fault is included in the details of the breach in the second notice to remedy breach and was discussed with an electrician on 30 October 2020 or a short time later.  The defect was not repaired prior to the applicants vacating the premises.
39. [39]
    The applicants are entitled to compensation for the defective lights, in my opinion.
40. [40]
    The applicants claim compensation equal to 20% of the rent from the date of the second notice to remedy breach containing notice of the defect to the day they vacated the premises, a period of 24 days.  The defect, if it was because of water in the light fittings as suggested by the electrician, should have been repaired promptly.  Notwithstanding, the percentage, in my opinion, is too high.  I will order that the respondent pay to the applicants compensation equal to 5% of the rent for 24 days, the sum of $230.80.

Summary of applicants’ claims

41. [41]
    The total compensation payable by the respondent to the applicants is $3,875.50.

Respondent’s claims

42. [42]
    Introduction: It is convenient to address the claim for costs incurred by the lessor in reletting the premises ($1,485.00) and loss of rent ($2,507.07) together.
43. [43]
    The claim for water consumption charges, $206.17, is conceded by the applicants and may be put to one side.
44. [44]
    The remaining claim is for pet odour treatment, $240.00.  It is contested by the applicants.
45. [45]
    Costs and rent: Costs are payable for early termination of the tenancy agreement under clause 7.  However, the clause does not apply if the applicants terminated the tenancy agreement in a way permitted by the RTRA Act.
46. [46]
    Section 277 of the RTRA Act sets out the ways in which a residential agreement ends.  One way is for a tenant to give the lessor a notice of intention to leave under section 327 of the Act and hand over vacant possession of the premises on or before the handover day for the notice.^[2]
47. [47]
    The applicants, in accordance with section 302(1) of the Act, gave to the respondent a notice of intention to leave on the ground the respondent had failed to comply, within the allowed remedy period, with a notice to remedy breach given by the applicants to the respondent.  The ground is that specified in section 302(1) of the RTRA Act.  The notice was given on 27 November 2022 with a handover day 5 December 2022.  The applicants handed over vacant possession of the premises on the day specified.
48. [48]
    The notice complies with section 327 of the RTRA Act.
49. [49]
    If a lessor disputes the ground stated in a notice to remedy breach or notice of intention to leave, the lessor may apply to a tribunal for an order about the notice under section 424 of the Act.  The respondent did not do so, whether in respect of the notices to remedy breach or notice of intention to leave.
50. [50]
    The respondent, in its submissions filed 13 December 2022, asserts the notices to remedy breach are invalid on the ground, “... they are based on the opinions of Mark Smith and John O'Neill as tenants, not the approved tradespeople who attended the work orders ...”  The assertion is rejected.
51. [51]
    In my opinion, the evidence shows the respondent was in beach of the tenancy agreement at the time the notices to remedy breach were given to it.  The breaches were not remedied within the time specified in the notices with the consequence the applicants were entitled to give the notice of intention to leave.  They handed over vacant possession of the premises on the handover day for the notice.
52. [52]
    It follows that, by virtue of clause 7 of the tenancy agreement, the respondent is not entitled to the costs and rent claimed.
53. [53]
    There will be no order in respect of costs and rent.
54. [54]
    Pet odour treatment: The applicants had a dog and a cat in the premises.  They arranged a bond and carpet clean before vacating the premises.  There was no pet odour, and the treatment arranged by the respondent was unnecessary, the applicants state.
55. [55]
    I accept the respondent’s evidence the treatment was necessary to treat pet odour.  The amount charged by Jewel Carpet Cleaning & Pet Control, in my opinion, is reasonable.
56. [56]
    There will be an order that the applicants pay the charge.

Summary of respondent’s claims

57. [57]
    I will order that the Residential Tenancies Authority pay to the applicants the rental bond less the water consumption charges and the cost of the pet odour treatment.  There will be an order that the respondent pay to the applicants the compensation assessed.

Decision

58. [58]
    The decision of the Tribunal is as follows:

1. (a)
   the Residential Tenancies Authority pay the rental bond in the sum of $5,400.00 as follows:

1. (i)
   the tenants - $4,953.83;
2. (ii)
   the lessor - $446.17;

2. (b)
   the respondent pay to the applicants compensation in the sum of $3,875.50 within 14 days of the date of this order.