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Keating v Bidenko[2019] QCATA 24

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Keating v Bidenko [2019] QCATA 24

PARTIES:

PENNY KEATING

(applicant/appellant)

 

v

 

LOUISE BIDENKO

(respondent)

APPLICATION NO/S:

APL197-18

ORIGINATING APPLICATION NO/S:

MCD T92/18

MATTER TYPE:

Appeals

DELIVERED ON:

4 February 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Carmody

ORDERS:

  1.  Leave to appeal granted 8 November 2018.
  2.  Appeal allowed.
  3.  Rent decrease order set aside.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCIES – LEASES AND TENANCY AGREEMENTS – COMPENSATION – application for leave to appeal against rent decrease order under 94 Residential Tenancy and Room Accommodation Act 2009 (RTRA Act) made 18 months after the tenancy ended – where owner of rented premises allegedly failed to perform a promise to erect a security fence during the first or subsequent term of an extended tenancy – where a late compensation claim for the same lessors breach was statute barred – whether tribunal had discretion to retrospectively refund rent already paid in the circumstances  – where, in any case, the order was made unfairly due to tribunal’s failure to explain and allow time to adequately respond to late amendment raising new issues of law and fact as well as discretionary considerations – where no consideration or conclusion stated about whether the decreased amenity or standard of the premises was substantial.

Limitations of Actions Act 1974 (Qld) s 10

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 32, 61(1)(a)

Residential Tenancies and Rooming Accommodation Act 2009 (Qld) ss 94, 417, 419, 420

Campbell v Donker [2013] QCATA 6

Hurst v Pyatt [2017] QCATA 101

Place West Rental v Brooks & Anor

ottom:0pt; ">Underwood v Queensland Department of Communities (State of Queensland) [2012] QCA 158

Vloedmans v Malseed [2014] QCATA 174

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

  1. [1]
    Leave was granted on 8 November 2018 to appeal against a retrospective lump sum rent decrease order the tribunal made under the discretion conferred by s 94 Residential Tenancies and Rooming Accommodation Act 2009 (RTRA Act).

The context

  1. [2]
    The respondent (tenant) applied for orders to recover $3000 in extra rent paid over 150 weeks as “reparation” for the loss of benefit of a dog fence the appellant (owner) allegedly promised to provide but was not received.
  2. [3]
    On her case she paid $320.00 (or $20.00 more than the advertised weekly rent) over four (4) different tenancy periods from 2 April 2015 to 24 February 2018 in consideration for the fence.
  3. [4]
    The respondent was finally told by the property manager that the owner was not going ahead with the “fence installation at this point in time” on 24 April 2017.
  4. [5]
    According to a note on the property agent’s file dated 22 January 2018:

Tenant came into the office this morning and advised that she will not be signing a lease until she knows if a fence will be installed.

She believes that it should be installed as when she originally moved into the property she agreed to pay $320 instead of $300 on the terms that a fence would be installed. At the time this was in the event that they were getting a dog, they didn’t get a dog however she now has a toddler therefore would like him to be able to be in the back yard and not worry about getting on the road.

  1. [6]
    The owner admits agreeing to the fence at some unspecified time during the first six months tenancy but (1) denies it was an oral or implied term of the rental agreement itself or, if it was, (2) the cause of action for breach (a) did not survive the end date of 1 October 2015 (b) was waived by the tenants conduct in twice renewing without mentioning the fence,[1] or failing that (c) was statute barred by the start of the third renewal from 26 October 2016[2] and in any case (3) the tribunal has no jurisdiction to make a rent decrease order in circumstances where a compensation claim for the same breach is out of time.[3]

Statutory remedies for lessor breach

  1. [7]
    A tenant claiming that there has been a breach of a term of a residential tenancy agreement by the lessor has to apply for tribunal order about the breach either before or after the end of the tenancy[4] but not later than six months after becoming aware of the alleged breach.[5]
  2. [8]
    The effect of s 417 is that the rule will be complied with if an application has been made to the Residential Tenancy Authority for dispute resolution about the issue in time.
  3. [9]
    The tenant’s dispute resolution application was 18 months late and the discretion conferred on the tribunal by s 61(1)(a) QCAT Act to dispense with procedural rules by, for example, extending a date[6] does not overcome the mandatory effect of the six month rule.  However, the tribunal decided to amend the claim by adding a plea for abatement relief under s 94 RTRA Act[7] which in contrast to compensation claims for breach survive for up to six years.[8] Unfortunately, the tribunal failed to ensure the parties understood the legal implications and give them any time to prepare or present opposing cases.  This alone warrants appellate intervention to relieve against obvious substantial injustice to the appellant, there are, however, other defects.
  4. [10]
    The tribunal can (not must) make an order for a rent decrease to a stated extent under ss 94(3) –(4) in the circumstances stated relevantly in s 94(2), that is, if:
  1. services, facilities or goods to be provided to a tenant under the agreement are no longer available or are withdrawn …
  2. the amenity or standard of the premises decreases substantially …
  1. [11]
    The words “facilities” is defined for rooming accommodation only as including furniture and equipment.  Goods generally includes animals, plants, money, documents and “anything else of value” but may not include a fixture.  Services is not defined but conveys providing a benefit or meeting a need.
  2. [12]
    Even assuming for the sake of argument that the security fence was a facility, service or goods to be provided by the owner under the agreement any failure to perform arguably cannot satisfy the requirements of s 94(2)(a) because something that never existed cannot be “no longer available or withdrawn”.
  3. [13]
    For s 94(2)(b) the issue is whether the “amenity or standard of the premises” decreased substantially without the fence.  The word amenity is not defined.  Its dictionary meaning denotes a subjective concept or perception of desirable features, appeal or enjoyable advantages. A “standard”, by contrast, is a comparative measurement or norm or benchmark for assessing degrees of deviation or conformity.
  4. [14]
    As with s 94(2)(a) the failure of a lessor to deliver on improvements to the premises in the future cannot have the practical effect of decreasing (or lessening) its subsisting amenity or standard.[9]
  5. [15]
    Accordingly, the s 94(4) discretion was not engaged on the facts and the tribunal had no power to make a rent abatement order under s 94(3).[10]
  6. [16]
    Even if the discretion was enlived by either s 94(2)(a) or (b) its proper exercise is dependent on a finding that the amenity or standard not only changed for the worse but was “substantial” within s 94(2)(b).  The remarks at T1-7:40-8:25 are not enough to imply that the tribunal was reasonably satisfied that the mandatory minimum degree of loss for s 94 had been incurred by the tenant.
  7. [17]
    Also, the tribunal did not consider the reasonableness of a rent decrease where the claim was made so long after the alleged breach.[11]  This was a relevant consideration in forming the choice open to the tribunal whether to reduce the rent or not in the circumstances.
  8. [18]
    For all these reasons the appeal is allowed and the order set aside.
  9. [19]
    Given that the only other possible action open to the respondent is a statute barred compensation claim for a breach it is pointless remitting the matter for reconsideration.
  10. [20]
    Finally, in submissions the applicant complained that the tribunal failed to order a refund for the cost of carpet cleaning wrongly deducted from her bond but as she has not applied for leave to appeal that order as required by the QCAT Act the appeal tribunal’s jurisdiction is not invoked and is powerless to intervene.

Footnotes

[1]  The owner says that there was no rent reduction request not until the fourth lease was offered at the end of 2017.

[2]  Transcript of proceedings, 19 June, 2018 T1-6:30.

[3]  cf Campbell v Donker [2013] QCATA 6.

[4]  RTRA Act ss 419(2), 420(1)(b),(e).

[5]  RTRA Act s 419(3).

[6]Place West Rental v Brooks & Anor [2012] QCAT 511.

[7]  Transcript of proceedings, 19 June, 2018 T1-4:20-25; 1-8:25, 1-14:25. cf T1-14:15 and 1-14:35-45.

[8] Limitations of Actions Act 1974 (Qld) s 10.

[9] Vloedmans v Malseed [2014] QCATA 174, at [15]-[17].

[10] Hurst v Pyattt [2017] QCATA 101.

[11] Underwood v Queensland Department of Communities (State of Queensland) [2012] QCA 158 at [28], [30].

Close

Editorial Notes

  • Published Case Name:

    Penny Keating v Louise Bidenko

  • Shortened Case Name:

    Keating v Bidenko

  • MNC:

    [2019] QCATA 24

  • Court:

    QCATA

  • Judge(s):

    Carmody J

  • Date:

    04 Feb 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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