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Warren v McIntyre QCATA 26
Warren v McIntyre  QCATA 26
Elizabeth Anne Warren
Carol & Darren McIntyre
On the papers
Senior Member Stilgoe OAM
23 February 2015
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE –RESIDENTIAL TENANCIES – where rat infestation – where rats killed – where smell from rotting carcasses – where lessor slow to act – whether grounds for leave to appeal
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Pickering v McArthur  QCA 294
Clarke v Japan Machines (Australia) Pty Ltd  1 Qd R 404
Chambers v Jobling (1986) 7 NSWLR 1
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- Mr and Mrs McIntyre loved living in their rented home in Highgate Hill until it suffered from a rat infestation. Although the lessor treated the rats, the smell of their rotting carcasses was unbearable. Mr and Mrs McIntyre asked for action on the smell but none was taken. They served a notice to remedy breach, but there was no action. Finally, they gave notice of intention to leave.
- After Mr and Mrs McIntyre left the home, they filed an application for compensation. At the hearing, the lessor, Ms Warren was represented by her real estate agent, Property Three Pty Ltd t/as First National Real Estate Metro. The tribunal ordered that the lessor pay Mr and Mrs McIntyre $2,497.93.
- Ms Warren wants to appeal that decision. In the application for leave to appeal, Ms Warren submitted that there were three major issues that were not taken into account by the learned Member. When Ms Warren filed her submissions, the issues were reduced to two: there was no evidence that there was a health and safety risk at the house; and Mr and Mrs McIntyre were not correct in their assertion that the owner was not willing to enter into conciliation.
- Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.
- Mr and Mrs McIntyre gave sworn evidence of a “putrid” smell after the rat treatment. They gave sworn evidence that the smell was unbearable and the house was unliveable. They gave sworn evidence that they asked the agent to attend, but no one came. Their evidence was supported by contemporaneous emails to the agent. At the hearing, the agent told the learned Justices ‘…everything that the applicants have said is correct to that point’. The only contrary evidence is a report from Peter the Possum Man dated 2 September 2014, but that is almost two weeks after Mr and Mrs McIntyre first complained about the smell.
- Ms Warren asserts that the learned Justices made her decision based on hearsay. That is incorrect. The learned Justices heard directly from the people who were living in the house and experienced the smell. Ms Warren asserts that she acted promptly. The evidence does not support that assertion. Mr Scurfield, who appeared for Ms Warren at the hearing, conceded that the agent could not contact Ms Warren when the notice to remedy breach arrived.
- Ms Warren asserts that Mr and Mrs McIntyre’s evidence was emotive and unsubstantiated. It may have been emotive; I cannot tell that from the transcript and I do not know how Ms Warren, who was not present at the hearing, can make that assertion. If the evidence was unsubstantiated by independent evidence, then the fault lies with Ms Warren. She had the opportunity to inspect the house at the time of the odour and did not do so.
- Ms Warren has provided fresh evidence with her application for leave to appeal. She writes that, when she visited the house in late September 2014, she did not notice a smell. She writes that the new tenants have not complained of a smell. Mr Scurfield has provided a letter to similar effect.
- The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Ms Warren have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?
- Ms Warren could have obtained this evidence prior to the hearing. She submits that she did not do so because she was caring for her seriously ill daughter. I would accept that reason for failing to obtain evidence except for the fact that she had engaged a professional real estate agent to manage the tenancy. Mr Scurfield should have taken the precaution of introducing this evidence.
- The fresh evidence will not have an important impact on the results of this case. Evidence of what a person experienced weeks after the complaint is no evidence of the situation at the time of the complaint. The evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Member.
- The evidence can support the learned Member’s finding that the house was uninhabitable during a period when there was an unacceptable smell. There is nothing in the transcript to persuade me that the learned Justices should have taken a different view of the facts.
- Ms Warren also asserts that the learned Justices’ decision to order two weeks’ rent as compensation is unreasonable, given that Mr and Mrs McIntyre were initially only claiming one night, they did not vacate the house on that night, and did not produce evidence of alternative accommodation for that night.
- Section 94 of the Residential Tenancy and Rooming Accommodation Act 2008 (Qld) allows the tribunal to reduce the rent if the amenity or standard of the premises decreases substantially. Whether or not Mr and Mrs McIntyre actually left their home is not the test. The learned Justices were satisfied that the house was unliveable for some time and they allowed compensation on that basis. I can find no reason to come to a different view.
- Ms Warren also asserts that she complied with her obligation as lessor and that she was a diligent owner. As I have already indicated, the transcript shows a different story. Ms Warren may have attended to many other requests for maintenance and repair but, critically, she did not respond to this issue to the learned Justices’ satisfaction.
- There is no reasonably arguable case that the learned Justices were in error. Leave to appeal should be refused.
 Transcript page 1-8, lines 13 – 15.
 QCAT Act s 142(3)(a)(i).
 Pickering v McArthur  QCA 294 at .
 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125 – 126.
 Chambers v Jobling (1986) 7 NSWLR 1 at 10.
 Transcript page 1-3, lines 30 – 37; page 1-6, lines 42 – 44; page 1-10, line 44.
 Transcript page 1-3, lines 36 – 37; page 1-6, line 44 to page 1-7, line 2.
 Transcript page 1-7, lines 1 – 2; page 1-10, lines 45 – 47.
 Transcript page 1-12, lines 1 – 2.
 Transcript page 1-12, lines 2 - 3
 Clarke v Japan Machines (Australia) Pty Ltd  1 Qd R 404 at 408.
- Published Case Name:
Warren v McIntyre
- Shortened Case Name:
Warren v McIntyre
 QCATA 26
Senior Member Stilgoe OAM
23 Feb 2015