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Cleaver v Stringer QCATA 72
Cleaver v Stringer & Anor  QCATA 72
9 May 2017
Senior Member Stilgoe OAM
Ex tempore 9 May 2017
APPEAL – LEAVE TO APPEAL – LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – where tenant filed claim for rent decrease pursuant to s 94 of the RTRA Act – where claim supported by mould test of one room and photographs – where tribunal found that rent reduction only applied to one room that was mould tested – whether grounds for leave to appeal
Caruana v Harcourts Proactive Results Pty Ltd  QCATA 55
REASONS FOR DECISION
- Ms Cleaver entered into a tenancy agreement with the Stringers on the 29th of November 2014. By the 4th of May 2015, it was clear that Ms Cleaver wasn’t particularly happy in the tenancy as there was an email from the Stringer’s property agent to Ms Cleaver offering to release her from the tenancy agreement without penalty. Nevertheless, Ms Cleaver stayed in the tenancy. In March 2016 – and it may have occurred earlier, but at least at March 2016 – there was an email from Ms Cleaver to the property manager complaining about the mould in the property.
- From there, there was a series of events and tests which resulted in Ms Stringer bringing a claim before the tribunal for compensation. Her total claim was $20,754.79. That was a 100 per cent rent reduction from the 11th of June 2016 until the termination of the tenancy and a 20 per cent rent reduction for the six months prior to that plus the costs of remediating bedding and linen, the cost of treating the car and also some additional costs for pet accommodation, food, toiletries, those sorts of things.
- The tribunal below ordered that there would be a rent reduction of one-sixth from the 16th of June 2016 to the 29th of August 2016 and then a further rent reduction until the tenancy was terminated. The tribunal also awarded some expenses, principally the reimbursement of an invoice from AMC Ozone Testing.
- Ms Cleaver has applied to the Appeal Tribunal for leave to appeal that decision. Because this is a decision from the tribunal in its minor civil disputes jurisdiction, leave is necessary. In order to establish successfully leave to appeal, Ms Cleaver must demonstrate two things: firstly, that there’s an error by the tribunal, and, secondly, that the error created a substantial injustice.
- Ms Cleaver has four grounds of appeal. Firstly, that the tribunal below relied only on the mould testing report as a means of determining mould contamination, and, secondly, that there were other ways in the evidence to establish that there was contamination of mould and that that evidence was ignored by the tribunal below. Specifically, Ms Cleaver says that there was photographic and affidavit evidence. The third ground of appeal is that the evidence submitted proved that the mould infestation was within more than one room within the house and therefore the order of the tribunal granting a rent reduction for one room only was inadequate.
- The first three grounds of appeal are inextricably linked. They are essentially an allegation that the tribunal made an error of fact based upon the evidence that was before it. And the reason that I say they’re inextricably linked is because the allegation that there was only the report used, and that the adjudicator ignored the other evidence, and that that evidence proved more than the adjudicator was prepared to accept are, in fact, the one allegation that there was more evidence.
- As I indicated to Ms Cleaver, it is not unusual for a party to be dissatisfied with the outcome even when, as here, she was partly successful, but dissatisfaction in itself is not enough to justify leave to appeal.
- I also pointed out to Ms Cleaver that when a party is alleging an error of fact, the tribunal will not generally disturb the decision of the tribunal if the facts inferred by the tribunal upon which the finding is based are capable of supporting its conclusions and that there is evidence capable of supporting any inferences underlining it. An appellate tribunal will only interfere if the conclusion at first instance is contrary to the compelling inferences in the case. As I pointed out to Ms Cleaver, the test is not whether, when looking at the evidence, I would make a different decision. The test is whether the decision by the tribunal can be supported by the evidence.
- So turning to whether or not the evidence could support the decision by the tribunal. Ms Cleaver is correct; there are lots of photographs, and she gave extensive evidence about the extent of the mould in the property. To counter that, however – and this is principally what the tribunal relied upon – there was a report by the Gold Coast City Council which reported that mould was minimal in the house, (and I understand that Ms Cleaver does not accept that report and later complained to the Gold Coast City Council), but the fact is that the report before the tribunal recorded minimal mould. And there is a report which took readings within the property which demonstrated that certainly the bedroom was highly contaminated, and that was the basis for the tribunal’s decision, but there were no findings that there was excessive contamination in other areas.
- Ms Cleaver said at the tribunal below, and she repeats, that once a part of the house is contaminated by mould, the whole house is contaminated by mould and relied upon a footnote in the report from AMC that once there is mould present, everything needs to be remediated and tested. The tribunal didn’t accept that evidence. The tribunal relied upon the report showing that there was excessive mould only in one area and there was no mould detected in other areas, which tends to contradict Ms Cleaver’s suggestion that once there’s mould, the whole house is infected. The evidence can support the tribunal’s finding. And, as I said, even though I might come to a different decision, that’s not the test. There are no compelling reasons for me to overturn that finding.
- I just want to make some other comments as well. Ms Cleaver told me at length today about the flooding problem within the house and said that the tribunal should necessarily have found that because there was flooding, there was mould. The evidence before the tribunal didn’t go that far, and I gained the impression in this hearing that Ms Cleaver was conflating mould and flooding and there needed to be clear evidence before the tribunal of that link, and that was not there.
- The other thing is that the tribunal has confirmed in an earlier decision of Caruana v Harcourts Proactive Results Pty Ltd  QCATA 55 that there is a duty on a tenant in a situation where a tenancy is uninhabitable to take self-help steps, and those self-help steps in this case were clearly an opportunity for Ms Cleaver to vacate the tenancy in May 2015, when she was given that opportunity, at the end of the lease, which was in 27 November 2015. And I note from the hearing today that Ms Cleaver, in fact, left the property for a period of three months.
- Ms Cleaver told the tribunal below that she had difficulty in finding accommodation. Clearly, she found accommodation for three months, but in terms of her personal property, she also had a duty to undertake some self-help. So it might have been a very different hearing had Ms Cleaver given notice of the mould, given notice of her intention to remove her goods to storage until the mould had been remediated and claimed the storage costs. It might have been different if Ms Cleaver had just simply handed the keys back when she left in March and said, “I’m not coming back because of the mould difficulties.”
- But when you say to a lessor or a property manager that the property is completely uninhabitable and continue the tenancy which was by then a month to month tenancy for another six or so months, then there’s pretty clear evidence of a failure to take self-help measures. I understand that there was evidence of difficulty in renting alternative properties, but if something is clearly uninhabitable and there is a difference in views about who should be responsible or whether it is the lessor’s responsibility, then I would have thought that the remedy lies within the tenant’s hands.
- I accept that Ms Cleaver takes the view that the property was in a poor state of repair, and certainly the photographs that she produced to the tribunal show that it was an older property and might have required some work, but, again, that slow response to some of the remediation problems doesn’t go to the issue of mould.
- I accept Ms Cleaver says that she only had one part of the property tested for mould because of the cost. I accept that the tribunal isn’t bound by the rules of evidence, but the tribunal can only act on what’s put before it at the hearing, and, Ms Cleaver, it was your case to prove. The tribunal wasn’t satisfied to the extent that it thought it should have been that there was a mould problem. And, as I have said on a number of occasions throughout this hearing, this is not an opportunity for a rehearing. It’s not an opportunity to fix up the holes in the case that may have been before the tribunal below. This is an opportunity to demonstrate tribunal error, and it was not the tribunal’s fault that there was only one area tested. For all of those reasons, leave to appeal is refused.
- Published Case Name:
Cleaver v Stringer & Anor
- Shortened Case Name:
Cleaver v Stringer
 QCATA 72
Senior Member Stilgoe OAM
09 May 2017