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- Unreported Judgment
Ford v Armitage QCATA 152
Ford v Armitage & Anor  QCATA 152
14 September 2016
12 October 2016
IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – FAILURE TO GIVE REASONS FOR DECISION – ADEQUACY OF REASONS – where the parties entered a verbal lease agreement – where the tribunal found that there was no evidence the lessors had complied with their obligations in respect of notifying the lessee that the premises were water efficient – where the tribunal did not go on to consider the effect of that finding – where there is insufficient evidence for the appeal tribunal to make a finding of fact – whether leave to appeal should be granted on this point
LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – OBLIGATIONS, PROHIBITED MATTERS AND PROTECTION FOR LESSEES – OTHER MATTERS – where the parties entered a verbal lease agreement – where there is no evidence that the premises were water efficient – whether the lessee paid for water consumption over several years – where the lessee claimed the water in the premises was unfit to drink – where the lessee claimed compensation – where the Residential Tenancy and Rooming Accommodation Act 2008 (Qld) imposes a time limit on claims – whether that time limit applies if the premises were not water efficient
Residential Tenancy and Rooming Accommodation Act 2008 (Qld) ss 67, 166, 419
Residential Tenancy and Rooming Accommodation Regulation 2009 (Qld) (RTRA Regulation) r 17
APPEARANCES and REPRESENTATION (if any):
REASONS FOR DECISION
- The applicant seeks leave to appeal the tribunal decision on 4 May 2016 to dismiss her application in Maroochydore claim 86/16 for compensation under the Residential Tenancy and Rooming Accommodation Act 2008 (Qld) (the RTRA Act).
- The applicant rented a property, 32 Sorbonne Close in Sippy Downs, from the respondent for eight years. On 15 January 2016, she served a notice to remedy breach on the landlords for failing to provide safe drinking water. She then applied to the tribunal for retrospective rent reduction due to her claim that the water in the property was dirty and caused her health problems.
- Section 419 RTRA Act dictates that there is a six month time limit in which an applicant can claim for breach of a tenancy agreement. The tribunal found that, even if the water quality could be causally linked to the sickness, the six month time limit applied and the applicant had not paid the one due payment in that time of $75.
- The applicant is upset that the law imposes the time limit for bringing a rent reduction claim for breach of tenancy agreement that she was not aware of. She is also clearly aggrieved the tribunal was not satisfied there was sufficient evidence to find in her favour.
- However, the appeal tribunal is in in no better position than the original tribunal to make conclusions on what findings of facts the evidence does or does not support. That is why the leave mechanism exists. I am not satisfied the tribunal’s conclusion that there was no apparent link between the applicant’s health problems and the allegedly dirty water in the property was unreasonable or irrational.
- This ground has no reasonable prospect of success on appeal and, in any case, the claimed compensation would appear to be statute-barred. Leave to appeal on this ground is, therefore, refused. However, that is not the end of the matter.
- The onus is on the lessors to prove water efficiency and the tenants’ legal obligation to pay all or part of the water supply costs. It emerged in the course of the leave argument that the lessors had probably been passing on water consumption costs in full without a “water efficient” certificate contrary to s 166(3) RTRA Act and Residential Tenancy and Rooming Accommodation Regulation 2009 (Qld) (RTRA Regulation) r 17.
- At  of the reasons, the tribunal noted, without going on to consider any consequences, that:
“(t)here is no evidence that there was notification given to her that the premises were water efficient and war (sic) that the applicable notice was provided therefore the landlord is in breach.” (emphasis added)
- In making that finding, the tribunal cited s 166 RTRA Act, which relevantly provides:
- The tenant may be required to pay an amount for all of the water consumption charges payable for the premises for a period only if, during the period, the premises are water efficient.
- If during a period the premises are not water efficient, the tenant may only be required to pay an amount for the water consumption charges payable for the premises for the period that is more than an amount payable for a reasonable quantity of water supplied to the premises.
- For this section, premises are water efficient only if they comply with the water efficiency requirements prescribed under a regulation.
- Also, RTRA Regulation r 17 states:
- … the tenant does not have to pay an amount for a reasonable quantity of water supplied to the premises for a period if, during the period, the premises are not water efficient for section 166.
Note— For details about water efficiency, see the information statement.
- In deciding what is a reasonable quantity of water for subclause (3), regard must be had to the matters mentioned in section 169(4)(a) to (e).
- “Information statement” is addressed in s 67 RTRA Act. It mandates that:
- The lessor or lessor's agent must give to the tenant, as required by this section, a statement in the approved form containing information for the benefit of the tenant.
Maximum penalty—10 penalty units.
- Without limiting subsection (1), the information may be about—
- the duties and entitlements of the lessor and tenant; and
- the procedures for resolving disputes under the agreement (including conciliation processes); and
- entities to which issues about the agreement may be referred.
- For an agreement that is not an agreement for a short tenancy (moveable dwelling), the statement must be given to the tenant on the earlier of the following—
- when the written agreement is given to the tenant for signing;
- the day the tenant becomes entitled to occupy the premises under the agreement.
… (emphasis added)
- Notably, r 17 is included in the Form 18A General Tenancy Agreement Form required to be signed by parties entering a tenancy agreement. The parties must also sign a Form 1A Entry Condition Report which includes an undertaking by the lessors that the premises are water efficient.
- Although not clearly or directly raised by the applicant, if the premises was not water efficient in the first place, and the landlords are in breach of the RTRA Act, a question arises for the appeal tribunal about whether or not the statutory time limit for taking compensation action applies. If charging for water is contingent upon the water efficiency status of the premises, the tenant may not have had any enforceable legal obligation to pay for water use at all (or, at least, less than what she did pay).
- Neither the applicant’s stated grounds of appeal nor the state of the evidence justify a grant of leave to argue this point in a rehearing before the appeal tribunal.
- However, as this is an important matter with potentially substantial financial consequences for the parties, it should have been (but was not) investigated by the tribunal at first instance. The same can be said of the issue of whether the amount the tenant paid is recoverable as monies had and received or only as compensation for breach of the tenancy agreement subject to s 419 RTRA Act. It was an error of law to overlook these issues.
- The appropriate course of action, then, is to grant leave to appeal and to remit the matter to the tribunal for reconsideration of the applicant’s legal liability to pay for water consumption under the tenancy agreement and whether any overpayment is recoverable in a common law action or only under the RTRA Act.
- Published Case Name:
Ford v Armitage & Anor
- Shortened Case Name:
Ford v Armitage
 QCATA 152
12 Oct 2016