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Moreau v Local Agent QCATA 13
Moreau v Local Agent  QCATA 13
On the papers
31 January 2017
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 application for leave to appeal or appeal does not specify any recognised species of appellable error – whether the defect in form should be a barrier to accessing the appeal procedure – whether the tribunal’s findings were deficient – whether the residential tenancy hearing process envisaged by the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and Residential Tenancies and Rooming Accommodation Act 2008 (Qld) was sufficiently followed
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 9, 28, 29, 57, 61, 62, 63, 64, 95, 97, 98, 142, 143
Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 94, 183, 191, 185, 217, 302, 303, 327, 331, 332, 362, 419, 420, 421
Johnson v Perez (1988) 166 CLR 351
Underwood v Queensland Department of Communities (State of Queensland)  QCA 158
APPEARANCES and REPRESENTATION:
This matter was heard and determined on the papers without the attendance of either party in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- The applicant claims that a $255 compensation award for a lessor’s tenancy breach is inadequate because it does not take into account “all costs”. She says the tribunal did not give enough weight to key evidence supporting the liability and quantum aspects of her claim and asks the appeal tribunal to conduct a rehearing of the matter with a view to making an order that her rent account be credited with a reduction of $3,071.79 plus tribunal costs.
- A party to tribunal proceedings is entitled to automatically appeal an unsatisfactory decision on a question of law but needs leave to do so on grounds of alleged errors of fact or mixed law and fact. Both applications for leave to appeal and actual appeals against tribunal decisions (made in the same approved form) must state the reasons for the application or appeal. In either case, a specific appellable error must be identified in the grounds and, for a grant of leave, be reasonably arguable.
- The Form 39 filed by the applicant does not allege any recognised species of appellable error and, therefore, is technically irregular. However, the appeal tribunal may do all things necessary or convenient for performing its function including, on its own initiative, waiving or granting relief from procedural requirements, extending time fixed for starting a proceeding (even if the time limit has passed and provided the opposing party is not disadvantaged), giving directions and amending defective tribunal documents.
- However, the purpose of the appeal procedure is to avert substantial injustice to applicants by correcting demonstrated mistakes. Procedural defects should not be used, especially in this forum, to defeat that object. The leave application will therefore proceed on its merits despite the deficiency in form.
- The applicant rented a unit managed by the respondent at 1/59 Esplanade, Golden Beach in Caloundra from 2011. She paid $255 rent per week and had contents’ cover with a $525 excess.
- The premises was partly flooded on 16 April 2016. Emergency excess water extraction and air drying of carpet in the hallway and a bedroom was carried out by professionals on the same day. The applicant was away from the premises from 16 to 21 April 2016 in New South Wales. On her return, she found the premises and contents covered in mould – allegedly due to increased moisture levels caused by the flooding – and complained of a related musty smell.
- The applicant claims to have developed an allergic reaction and received medical treatment for it. Her insured contents were also affected by mould. She gave the respondent three Form 11 notices for failure to address the ongoing mould problem on 16 May 2016, 9 June 2016 and 15 June 2016.
- The carpet was over ten years old. It was not insured against flood damage. Naturally, the respondent did not want to spend the owner’s money on replacing the carpet if there was a cost effective solution to the mould problem.
- At the applicant’s urging, however, the respondent arranged for professional mould remediation on 24 May 2016 (five weeks’ after the event) but this, according to the applicant, was ineffective because the carpets were not lifted and treated. She moved into alternative accommodation pending resolution. She kept paying rent up to 24 June 2016 but there was a dispute about whether she aggravated the problem by locking up the premises without ventilation.
- On 1 June 2016, the respondent acknowledged the high moisture reading of the carpet in the second bedroom and lounge room, suggesting that removal of those sections would “at best eliminate the problem for now”. This suggests that the earlier treatment may not have been successful and that the applicant had genuine cause for concern and complaint a week later.
- The respondent inspected the premises again on 9 June 2016, but detected no mould or smell apart from a small section on the wall in the second bedroom. Photographs show the premises in a mould-free condition except for on top of the fridge which, according to the respondent, was due to a lack of cleaning.
- On 16 June 2016, the applicant’s insurer notified the applicant that it refused to approve her contents claim until the carpets had been lifted and effectively treated. It is unstated whether this position was adopted on the basis of the applicant’s information or a loss assessor’s independent report.
- The application for minor civil dispute, claiming compensation of $5806 for repairs and rectification because premises were unliveable, including $313 medication and $1,000 in travel costs, was filed on 22 June 2016.
- On 27 June 2016, the applicant says mould was still evident throughout the unit and obtained a quote for removal from Mould Men but, again, it is unclear whether the business personally inspected the premises. Moisture readings of 14% to 32% recorded on 15 July 2016 were “not considered to be high with the current local weather conditions… and the fact that the unit is locked up… and not occupied” (emphasis added). No new mould was present.
- The agent later replaced the worn carpet in the lounge/dining room and offered a 25% reduction in rent from 24 May 2016, but the applicant rejected the gesture as inadequate to cover the inconvenience she suffered.
- A lessor’s basic obligation is to maintain the premises in good repair and ensure it remains fit for the tenant to live in throughout the tenancy period. Moreover, the tenant’s quiet enjoyment of the premises, comfort or privacy must not be interfered with. The applicant has a corresponding duty to notify the lessor about damage to the premises and any need for repairs and to mitigate any loss.
- Mould can constitute loss of amenity and a breach of a lessor’s obligation to provide liveable premises. The party responsible for the loss or damage caused by mould depends on what is causing it, e.g. a structural fault or lack of cleaning.
- For an unremedied breach, a tenant has the option of waiving her rights, voluntarily ending the tenancy agreement by notice and vacating the premises or applying for a remedial compensation order or a rent decrease.
- The tribunal’s compensation power in residential tenancy cases under s 420(1)(e) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act) is not limited except by the ‘fair and equitable’ requirement in s 13 QCAT Act and the matters mentioned in s 421 RTRA Act. Its jurisdiction to make a rent decrease order on the tenant’s application under s 94 RTRA Act, however, is exercisable only if either the premises are partly unfit to live in in a way that does not result from a lessor’s breach or the standard of the premises decreases substantially through no fault of the tenant. The usual principle of compensation in residential tenancy cases is that the complainant is to be put back as far (as money can do it) in the same position as if the loss suffered had not occurred.
- The hearing procedure for a proceeding is at the tribunal’s discretion but, statutory prescriptions aside, it must at least observe the rules of natural justice and act fairly and according to the substantial merits of the case. The mode of hearing can be by affidavit or oral testimony, with or without cross examination, so that sufficient relevant and reliable information is disclosed for discharging the forensic function via investigation and deduction so as to give proper consideration to the rival cases with all the relevant facts.
- All reasonable steps must also be taken to ensure the parties understand tribunal practices and procedures, the nature of the assertions made in the proceedings and their legal implications and the parties must be given a reasonable opportunity to present their case including, when appropriate, by examining witnesses. For this purpose, the tribunal has general powers to take and require evidence on oath or order verified written statements from witnesses for this purpose. It may also summons relevant witnesses and documents.
- Also, the tribunal is empowered to inform itself of relevant matters in appropriate ways, call and examine its own witnesses and compel answers so as to ensure all relevant evidence is sufficiently disclosed to enable it to decide the substantial merits of the dispute with all the relevant facts.
- The tribunal’s forensic task in this case was to determine whether, in the circumstances, (a) the premises were unfit to live in to any and what extent; (b) the amenity or standard of the premises were substantially reduced; (c) any compensation rent reduction due was payable; and, (d) if so, make an order in the tenants’ favour for the assessed amount.
- The tribunal resolved the dispute after swearing and questioning the parties by awarding the applicant equivalent to a weeks’ rent (or $255) as compensation for a month’s inconvenience for breach of agreement and terminating the tenancy by consent from 26 July 2016.
- The tribunal found that the carpet did not require replacement and accepted the respondent’s evidence that it remains at the property in perfectly good condition. It also dismissed the contents excess claim as the applicant’s “issue” and found that the agent had done a “reasonable” job in addressing the problem. It held that the applicant had not done enough to remove the mould herself and had failed to mitigate her losses. The applicant tried to explain that she couldn’t because she was anaphylactic, but the tribunal rejected that as an excuse and noted (over the applicant’s protests and without referring to or resolving the contested evidence on the point) that the applicant left the premises locked up and made matters worse after the remediation.
- As already noted, the applicant is legally entitled to a minor civil dispute resolution on the basis of a properly conducted forensic hearing, reasonable findings of fact based on relevant and reliable evidence and a ‘fair and equitable’ rent decrease or other compensation order in terms that adequately covered for proven losses.
- To give her that in the way envisaged by the QCAT and RTRA Acts, the tribunal was obliged to identify and resolve contested issues by (if necessary) taking oathed or affirmed evidence from the parties and other relevant witnesses, examining any admissible documents, properly applying the correct legal rules, principles and tests to the proven (admitted or evidence based findings of) facts, then giving a reasoned explanation of the outcome of the process to the parties in language likely to be understood before making orders to give it practical effect. Any procedure that does not meet these requirements is likely to be unfair and liable to be overturned for error of law.
- More particularly, it had to make evidence-based findings about whether:
- (a)the premises were partly or fully unfit to live in;
- (b)either (and which) party was responsible;
- (c)the amenity or standard of the premises was reduced substantially (that is, beyond mere inconvenience);
- (d)what and how much (in dollar terms) the applicant lost as a result;
- (e)the applicant mitigated that loss or exacerbated it; and
- (f)if any decrease in rent should be stated in an order and, if so, to what extent.
- Regrettably, the tribunal did not properly investigate or answer any of these questions before making its order. Crucially, it did not satisfactorily settle the dispute between the parties about the effectiveness of the lessor’s remediation, the effect of not replacing or treating the carpet and whether the appellant left the premises fully or only partly locked up when she vacated them on 24 May 2016 and the material consequences. Nor were specific findings made about the extent to which the premises were unliveable – nor for how long – or what compensable losses (including health and economic) the applicant incurred, including whether she had paid or was liable for contents insurance excess.
- For these reasons, the decision must be set aside and the matter returned to the tribunal to be fully reconsidered and resolved in accordance with the law as identified in these reasons.
- Grant leave to amend the notice of appeal to allege procedural unfairness and failure to exercise jurisdiction.
- Grant leave to appeal on questions of fact and mixed law and fact.
- Allow the appeal for legal error.
- Set aside the orders made by the tribunal on 28 June 2016.
- Remit the matter to the tribunal for reconsideration in accordance with the law as identified in these reasons.
 This figure represents a 50% rent abatement of $127.50 per week (or $746.79) for the period of 16 April 2016 to 24 May 2016; 100% rental credit of $235 per week from 24 May 2016 to 18 July 2016 at $235 (or $1,800) and contents insurance excess ($525).
 QCAT Act s 142.
 QCAT Act s 143.
 Ibid s 9(4).
 Ibid s 61(1)(c).
 Ibid ss 61(1)(a),(2),(3).
 Ibid s 62.
 Ibid s 64.
 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act) s 185(3).
 Ibid s 183.
 RTRA Act s 217.
 Ibid s 362.
 Ibid ss 94, 191, 302, 303, 327, 331, 332, 419, 420.
 Ibid ss 94(2)(b),(4)(b).
 Johnson v Perez (1988) 166 CLR 351.
 QCAT Act ss 28(1),(2),(3)(a).
 Ibid s 95.
 Ibid s 29.
 QCAT Act ss 57, 95(4).
 Ibid s 97; including third party documents: s 63.
 Ibid s 28(3)(c).
 Ibid s 98(1).
 Ibid s 28(3)(e).
 Underwood v Queensland Department of Communities (State of Queensland)  QCA 158.
- Published Case Name:
Moreau v Local Agent
- Shortened Case Name:
Moreau v Local Agent
 QCATA 13
31 Jan 2017