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Pavitt v Fisher-Charles QCATA 97
Pavitt v Fisher-Charles & Anor  QCATA 97
Appeals and rehearings
15 October 2015
25 February 2016
THE APPEAL TRIBUNAL ORDERS THAT:
APPEAL – MINOR CIVIL DISPUTE – APPLICATION FOR LEAVE TO APPEAL AND APPEAL – DENIAL OF PROCEDURAL FAIRNESS – REFUSAL OF ADJOURNMENT PROFESSIONS AND TRADES – LAWYERS – where the appellant was the owner of a residential property which was leased as holiday accommodation – where the respondents contracted with the appellant for temporary accommodation – where the respondent claim certain defects in the condition and facilities of the premises renders it unsafe and contrary to certain representations made in online advertisements – where the applicants filed a minor civil dispute claim in the Queensland Civil and Administrative Tribunal jurisdiction of the Magistrates Court – where the listing for the proceedings was modified significantly by the respondents and the appellant – where the appellant was labouring under significant circumstantial exigencies at a time immediately anterior to the hearing – where the appellant adduced sworn oral evidence that she had attempted to contact several witnesses who failed to appear as organised at the hearing – where the appellant sought to support the oral evidence with written communications contained on her mobile phone – where the Magistrate refused to receive evidence of the written communications on the mobile phone – where the Magistrate refused to grant an adjournment – where the Magistrate relied on the evidence adduced by the respondents – where the Magistrate ordered that the appellant reimburse the respondent for the filing fee and the full value of the rent of the property over the full duration of the contracted tenancy – where the appellant filed an application for leave to appeal and appeal on the grounds of mixed questions of fact and law – where the appellant asserts that she was denied procedural fairness as a result of the refusal of the request for adjournment – whether the appellant was denied procedural fairness – where leave to appeal was granted by way of rehearing on additional evidence – new facts found – decision in issue reversed.
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 29
APPEARANCES and REPRESENTATION (if any):
Tina Pavitt (self-represented)
Adam Fisher-Charles (self-represented)
Anne Fisher-Charles (self-represented)
REASONS FOR DECISION
- This is the rehearing of a claim brought under s 29 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act) for a full refund of prepaid rent ($4,200) and bond ($500) on termination for breach of the landlord’s obligation to provide a liveable, safe tenancy in good repair.
- The rehearing results from a grant of leave on questions of law (procedural unfairness and sufficiency of proof of breach), and was conducted on the basis of additional statutory declaration evidence without oral examination of witnesses for the purpose of making the decision which ought to have been made in the first place on the facts as found in this proceeding and the current law.
- The RTRA Act probably does not apply to this case because, as cl 4 of the terms and conditions make clear, it was a holiday letting.
- Nonetheless, there would still be an implied condition that the premises were as advertised and reasonably fit for the tenant’s to occupy.
- The applicant tenants assert that they were misled into the tenancy by an online advertisement misdescribing it as being “family and child friendly … secure property … with the comforts of home and otherwise safe for occupation”.
- The tenants claim that the accommodation was not secure and did not comply with the online description because the bathroom / toilet was located downstairs and accessible from the outside. In other words, they allege that the lessor had engaged in false or misleading conduct, or had breached an express or implied term of the lease agreement.
- The landlord, by contrast, claims that the tenants lacked any legal or factual entitlement to a refund or rent abatement because the premises complied with their description, were habitable, and delivered reasonable value for the price of the accommodation. The landlord further submits that even if the disputed deficiencies were established to exist, they did not legally justify repudiation of the contract or reduction of rent and, therefore, the applicant is not required to reimburse the respondents the value of the prepaid rent.
- The landlord co-owns a modest, low cost, three bedroom holiday let, Three Palms Holiday Queenslander (Three Palms) at Earlville outside Cairns.
- The tenants were in need of short term accommodation because their own house was being repaired by insurers and had agreed to cover rent up to $4,200 until the works were finished.
- The tenants agreed to take Three Palms for three weeks from 21 January 2015 to 11 February 2015 and paid in advance on a non-refundable basis under the terms of the tenancy. Despite being locals for some unexplained reason the tenants did not inspect Three Palms before the start date of the tenancy. They were apparently dissatisfied with it from the outset. The tenants did not even unpack and claim to have made emergency alternative arrangements to stay elsewhere.
- In an email to the landlord at 11:47pm on 21 January 2015 the tenants identified their complaints:
–  … we had a 16 week old baby in a house that was leaking gas, no hot water facilities and a blown light bulb leading downstairs to the outside toilet and shower.
– We have attached photos of the gas leak and the gas installation which has a number of issues of non-compliance which requires urgent attention.
– We were also concerned that the house could be unfit for occupation for several days and that the best you could offer was a refund but that did not solve the problem of where we were to live for the next three weeks. We therefore decided we needed to secure alternative accommodation as soon as possible and proceeded to book and pay a deposit on alternative accommodation.
–  the gas leak is just one of the issue with the property and if we are unable to resolve this with you in a reasonable manner then we will need to take these issues to Cairns Regional Council, stayz.com, Office of Fair Trading and or any other organisation that may be able to assist us in resolving this dispute. It would be unfortunate that we may be forced to take this action as it would undoubtedly affect the reputation of your accommodation and potentially affect your ability to derive income from the property or sell the property on.
- The landlord was overseas at the time and the stand-in property manager was unable to meet the tenant’s demands to their satisfaction within the limited time they were prepared to give. The landlord returned to Australia early from the United Kingdom on 29 January 2015 to investigate the tenants’ complaints and protect her investment. She had stayed at the property up to the 15 January 2015 and left it in “good clean order” and “well maintained” with current gas and pool compliance certificates.
- On 5 February 2015 the landlord emailed the tenants complaining that the gas bottle and fittings had been “tampered with” and questioning whether their dissatisfaction was “ever genuine and whether you just wanted a full refund”.
The security issue
- To show that the premises were insecure the tenants rely on their direct evidence to that effect, and a photograph showing a roller door opened to the yard (Exhibit E). The landlord was genuinely ‘shocked’ when photograph E was produced at first instance. She claimed that the photograph was either of someone else’s roller door or had been fabricated because the roller door had been locked and inoperable since 2009. An adjournment to adduce contrary evidence was refused. The Tribunal later placed significant weight on photograph E to find that the premises were not secure. Hence the grant of leave.
- On the rehearing the landlord relied on statutory declarations from her husband, John Pavitt, stating that the garage door was “always padlocked and unlockable.” A written statement by Janelle Wraith, who cleaned the premises on 14 January 2015 confirmed that the garage door still padlocked within 48 hours of the start of the tenancy.
- Wendy Simms, a friend acting as property manager, stated that she was contacted by the tenants in the late afternoon of 21 January 2015 complaining of a gas leak, lack of hot water and the “filthy” condition of the premises. Ms Simms inspected the house the next day and found it “perfectly clean, securely locked, (including the garage door) and no smell of gas.”
- Most telling, however, is the evidence of the handyman Rick Parlett.
- He had last been there on 14 January 2015 (a week prior to the tenant’s arrival) and seeing the garage door padlocked “as always.” However, when he went to the premises at the landlord’s request after the original decision on 4 May 2005 he found that the padlock had been “cut off” and “removed” and the locking mechanism was missing a screw. He replaced and refitted the lock “so the garage door was once again locked and secure.”
- Having regard to the evidence available to the tribunal I am reasonably satisfied that the premises was secure as advertised and within the ordinary meaning of that term when the garage door was locked at all times. Based on the evidence of Ms Simms the garage door was probably still locked on the 22nd January 2015. Even if the property was to be regarded as “not secure” despite the formidable perimeter fence it could easily have been made secure by closing and relocking the door or if the lock was missing replacing it or bringing the problem to Ms Simms’s attention.
- Finally, although online photos clearly show that the bathroom / toilet was located downstairs, the tenants claim that they were unaware of the configuration of the house and that a bathroom and toilet outside the main house was unacceptable and at odds with the “family friendly” description.
- The finding at 1-31  that “any person who could secure entry to the yard of the dwelling could easily secure entry underneath the unlockable and un-closable section of the house where the bathroom is located” is inconsistent with the evidence I accept on appeal.
- Likewise the concerns for the female tenant “if, for example, she or – was required to attend the bathroom particularly during the evening hours and darkness to have to do so in circumstances where she had to access it from outside in circumstances where she knew it was unsecure clearly was unacceptable and was completely inconsistent with what was represented in relation to the advertisement of the property which she responded to prior to renting it.”
- There is nothing in the evidence that shows that using the bathroom downstairs during the evening was in “darkness”, “unacceptable” or “completely inconsistent” with the online advertisement.
- Moreover, within limits, holiday accommodation is what it is. Generally speaking tenants who agree to rent “site unseen” assume a degree of risk and within reason must take premises as they find them.
The safety issues
- The tenants’ other major complaint was that the premises posed a risk to safety and was therefore uninhabitable due to a gas leak and faulty hot water system.
- The Tribunal found that there was a gas leak posing a safety risk partly on the basis of a photograph of the gas bottle in situ with gas evidently escaping from the valve but the photograph is not conclusive or independent of the tenants.
- The lessor claims that the tenants must have tampered with the gas bottle to create the illusion of the gas leak as a pretext for ending the tenancy prematurely. When she left the premises on 15 January 2015 it was in “good clean order” and “well maintained”. Neither the cleaner nor property manager smelt gas either just before the tenants arrived or after they had left. A professional gas plumber, Mark Doughtey, issued a gas safety compliance certificate on 3 February 2015.
- The male tenant is the managing director of Australian Plumbing, Gas and Solar (APGS) Pty Ltd. You would think he could fix an apparently minor gas leak.
- Even if there was a gas leak on arrival he probably had the expertise and equipment to diagnose and readily fix the problem but made no attempt to do so. Likewise, if the hot water system was faulty, there is no evidence that it could not be repaired or replaced without much trouble, cost or inconvenience.
- Under clause 10 of the terms of the tenancy which requires tenants to report “faults or malfunctions” as soon as possible and clause 12 obliged the lessor to make “best effort” to repair or replace any breakdown or failure of supply service during normal business hours.
- It may be that there are reasons to suspect that the tenants had the motive, opportunity and means to fabricate a false basis for termination with a view to recovering a full refund that was not available to them under the terms and conditions of the tenancy agreement (perhaps because the insurance repairs were finished earlier than expected) but, if it is open, a finding of that kind is not required for me to dispose of the appeal.
- Regardless of whether there was a genuine safety risk due to a gas leak or faulty hot water system, repudiation or unilateral termination of the entire three week occupancy agreement was not justified. Disappointed expectation is not a cause of action unless it is due to the breach of a contractual condition or was deceptively induced and even then the available relief – termination or compensation – is a matter of degree. Abatement of rent or other compensation may have been but was not claimed.
- The appeal is allowed. The Tribunal decision is set aside and in lieu thereof it is decided that the respondent’s claim be dismissed except to the extent of the refund of the security bond of $500.
- It is the decision of the Appeal Tribunal that:
- the appeal is allowed.
- the decision dated 4 May 2015 in MCD No. 39 of 2015 is set aside.
- the originating application in MCD No. 39 of 2015 is allowed in part.
- that the respondent’s claim be dismissed except to the extent of the refund of the security bond of $500.
 of the landlord’s statutory declaration.
- Published Case Name:
Tina Pavitt v Adam Fisher-Charles and Anne Fisher-Charles
- Shortened Case Name:
Pavitt v Fisher-Charles
 QCATA 97
25 Feb 2016