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Nobile v Illidge[2019] QCATA 89

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

Nobile v Illidge & Anor [2019] QCATA 89

PARTIES:

rosalea nobile

 

(applicant\appellant)

 

v

 

kylie illidge

 

(first respondent)

 

CASSELMAN PTY LTD T/AS RAY WHITE CHERMSIDE

 

(second respondent)

APPLICATION NO/S:

APL312-18

ORIGINATING APPLICATION NO/S:

MCDT268-18; MCDT289-18 (Brisbane)

MATTER TYPE:

Appeals

DELIVERED ON:

26 June 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

  1. Leave to adduce fresh evidence on appeal refused
  2. Leave to appeal refused 

CATCHWORDS:

APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – where a tenant claimed compensation for loss of amenity – where there was delay in bringing the application – where little weight was given the complaints about loss of amenity on the basis of delay – where the appellant complained about an award of a break lease fee where no break lease fee was awarded

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 94, s 185, s 419

Pickering v McArthur [2005] QCA 294

REPRESENTATION:

 

Applicant:

Self-represented

Respondents:

Self-represented by M Seymour

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]
    Ms Nobile was the tenant of a property at Chermside. She held it under a fixed term lease which commenced on 12 December 2016 and had an end date of 15 January 2018.
  2. [2]
    Ms Nobile had to break her lease because of a job offer in Western Australia. She advised the respondent agents about that and signed a break lease agreement but it transpired that there were only a few days before the end of the fixed term lease when she left anyway.
  3. [3]
    Ms Nobile brought proceedings in the tribunal claiming $9,071.70 compensation against the lessor for what she described as the premises being partly unfit to live in, loss of amenity, payment of bond and breach of agreement.
  4. [4]
    The lessor filed her own application claiming unpaid rent and cleaning costs on top of the bond which had already been paid out.
  5. [5]
    Both claims were heard together. The matters were first listed for hearing on 25 June 2018 but adjourned to 15 October 2018 when it became clear Ms Nobile was not in possession of all the material filed in the tribunal.
  6. [6]
    Following a second day of hearing the learned Adjudicator presiding ordered, in resolution of both claims, that the lessor be permitted to keep the bond of $1,600 and Ms Nobile pay an additional amount of $1,716.04 to the lessor.
  7. [7]
    Ms Nobile seeks leave to appeal that decision.
  8. [8]
    Given this is an appeal from a decision made in the Tribunal’s minor civil dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.[1]
  9. [9]
    Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice and where there is a reasonable argument that there is an error to be corrected.[2] There may be other relevant considerations, but these are primary.
  10. [10]
    Ms Nobile makes a long and wordy complaint in her application for leave to appeal which unfortunately is somewhat lacking in precision. General matters of complaint however focus around a break-lease payment and loss of amenity of the property associated with both the condition of the property and what is said to be intimidation and harassment by the agent throughout the course of the tenancy.
  11. [11]
    The respondents indeed queried the grounds of appeal in submissions made to the Appeal Tribunal. Ms Nobile responded with further submissions purportedly identifying the grounds of appeal as follows:
    1. (a)
      Ms Nobile is contesting the award of a break lease fee;
    2. (b)
      Ms Nobile disputes the dismissal of her claim for a rent reduction based on loss of amenity; and
    3. (c)
      Ms Nobile disputes the dismissal of her claim for compensation for loss of quiet enjoyment.
  12. [12]
    Accordingly, her complaints about the decision by the learned Adjudicator appear to be, broadly, that the learned Adjudicator:
    1. (a)
      should not have awarded the respondent a break lease fee;
    2. (b)
      should not have disallowed Ms Nobile’s claim for compensation for loss of amenity; and
    3. (c)
      similarly, should not have disallowed her claim for compensation for loss of quiet enjoyment chiefly attributable to the objectionable behaviour of the lessor’s agent.
  13. [13]
    Ms Nobile filed an application for leave to adduce fresh evidence on the appeal. The fresh evidence relates to her listing on the TICA database for the judgment debt following the hearing. None of the material is relevant to the issues being appealed. Leave to adduce fresh evidence is refused.

Break lease fee

  1. [14]
    Whilst the agent said there was a claim for a break lease fee, it was not included in the final claim for outstanding rent. Unpaid rent was claimed from 11 December 2017 to 15 January 2018 inclusive at a rate of $400 per week. At the hearing the learned Adjudicator asked whether Ms Nobile agreed with the claim for unpaid rent and she said she did.[3] Ms Nobile said what she didn’t agree with was the break lease fee even though she admitted she did break the lease.
  2. [15]
    The calculation for unpaid rent over the period 11 December 2017 to 15 January 2018 (both inclusive totalling 36 days) at $57.14 per day ($400 per week) totalled $2,057.14, which was the amount Ms Nobile was ordered to pay to he lessor. Accordingly there was no break lease fee added to the unpaid rent. Ms Noble has no grounds to complain about any break lease fee because it did not form part of the award against her.

Loss of amenity

  1. [16]
    Ms Noble complains she was not awarded anything for her claim for loss of amenity.
  2. [17]
    It should be recognised that the minor civil dispute list is a very busy list and generally, as in the matter at hand, adjudicators are encouraged to give reasons for decision ex tempore immediately following hearing. The reasons for decision are recorded in the transcript. Decisions ex tempore are difficult and some allowance must be made for such. I have had the benefit of reading the transcript.
  3. [18]
    Whilst the learned Adjudicator referred to conflicting decisions about whether or not a claim for loss of amenity pursuant to section 94 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘RTRA’) could be brought after the end of the tenancy, that is not the basis upon which he declined to award Ms Nobile compensation.
  4. [19]
    Rather, the learned Adjudicator said the applicant’s delay in bringing an application until after the tenancy ended went to the weight to be given the claim.[4] He said Ms Nobile’s claim was associated with a long tenancy, approximately two years, and therefore such delay meant less weight would be attributed to the claim than might otherwise be the case, such as to an application made during the term of the tenancy.[5]
  5. [20]
    Ms Noble complains that this was not a 2 year tenancy. She is right about that. The tenancy commenced in 2016 and expired in 2018, but hence most probably the reference to a 2 year tenancy by the learned Adjudicator. That was not accurate however. The tenancy went for 13 months, commencing end 2016 and ending beginning 2018.
  6. [21]
    The learned Adjudicator correctly pointed out however, that no form 11 notice to remedy breach had ever been issued by Ms Nobile during the term of the tenancy. If no notice to remedy breach was given, and yet the breach was remedied in the course of the tenancy, then the claim for loss of amenity had little ‘traction’, as the learned Adjudicator described it.
  7. [22]
    Ms Nobile submits she lodged a form 16 notice of dispute with the Residential Tenancies Authority on 5 January 2018 during the currency of her tenancy concerning her claim for compensation for loss of amenity. She says by virtue of section 417(2) of the RTRAA, making a dispute resolution request to the RTA about a dispute is deemed to be making an application to the tribunal. Accordingly she made an application to the tribunal during the currency of her tenancy.
  8. [23]
    Ms Nobile’s claims for loss of amenity included a claim for a defective air-conditioner which she said should have been replaced but was not for 110 days. That was disputed by the agent, who said there was only a total down-time of 18 days. Ms Nobile was calculating the 110 days from the date the air-conditioner first broke down, then was repaired and worked until it broke down again some 3 months later, at which time the lessor decided to have the unit replaced. Ms Noble was only missing a working air-conditioner for 18 days in all.
  9. [24]
    In an affidavit filed in the minor civil dispute proceedings Ms Nobile also complained, amongst other things, of a dirty stove, mould on windows, a leak in a toilet, a broken toilet seat and a broken dishwasher. These complaints were noted by Ms Nobile when she moved into the property in December 2016 in the entry condition report and raised with the agent immediately after start of the tenancy.
  10. [25]
    These complaints concerned the condition of the property at commencement of the tenancy. If they were so significant as to constitute a loss of amenity from outset, one wonders why Ms Nobile took the house in the first place. It was her choice to do so.
  11. [26]
    By s 94 of the RTRA if ‘the amenity or standard of the premises decreases substantially other than because of malicious damage caused by the tenant’ the rent payable under the agreement decreases as ordered by the Tribunal. Given the majority of the complaints existed at commencement of the tenancy, there was no decrease in amenity after the start of the tenancy. As an aside it should also be noted that there is no general compensation element to an order under s 94, but a rent decrease award only.
  12. [27]
    Further, any decrease in amenity must be substantial. The provision says that. None of these complaints, perhaps save potentially about the air-conditioner, could be described as substantial decreases in amenity. With respect to the air-conditioner, the only loss of amenity was comfort for 18 days, which one would struggle to describe as a substantial decrease in amenity considering the duration of the tenancy.
  13. [28]
    Given the timing as to when Ms Nobile thought to make formal complaint about these items, over 1 year after she knew about them, that the learned Adjudicator placed little weight on them is understandable and reasonable in the circumstances. The claim lacked merit.
  14. [29]
    In any case, as stated, the majority of the complaints were really complaints about the lessor’s failure to provide and maintain premises in good and clean repair which is a requirement imposed by the RTRA under ss 185(2)-(3). As such, any breach of those provisions as alleged amounts to a breach of the terms of tenancy and as such any application to the Tribunal about them had to be brought by a tenant within 6 months of the tenant becoming aware of the breach or breaches.[6] The mandatory limiting words to be noted in s 419(3) as relevant are ‘the tenant becoming aware’. She was aware of these matters for over a year before she took any formal step to seek redress. Ms Nobile was well out of time to claim compensation for these matters.
  15. [30]
    Ms Nobile has no prospects of success in respect of this ground of complaint.

Loss of quiet enjoyment

  1. [31]
    Ms Nobile’s final complaint concerns no award given her for a loss of quiet enjoyment claim.
  2. [32]
    In her initial application document, page 4, she described the claim as:

Loss of quiet enjoyment throughout the tenancy due to entry of workmen, Miriam’s accusations and intimidation whenever I reported a fault, harassment by neighbours and other persons trying to break into the house. Exorbitant costs charged at end of lease for bond clean etc.

  1. [33]
    Ms Nobile had made the complaints about the condition of the house (broken dishwasher, dirty oven, air-conditioner not working, broken toilet seat) immediately she moved in. She spoke to the agent ‘Miriam’, who disputed the accusations.
  2. [34]
    Ms Nobile also complained about two attempts to enter the property (the front door handle being jiggled and the door pushed) in early January 2017 which made her feel unsafe. She asked for additional security but the lessor refused.
  3. [35]
    There was also a problem with her garbage bins not being regularly collected by council. When the agent came for an inspection, according to Ms Nobile she chastised Ms Nobile for not emptying bins, but it was not her fault.
  4. [36]
    Then there was a problem with arguing neighbours and a crying child. Ms Nobile complained to the agent about that too but the agent said she could not do anything.
  5. [37]
    The complaint about entry of workmen presumably relates to their attendance to fix such things as the dishwasher and air-conditioning and toilet seat.
  6. [38]
    What does Ms Nobile say was the error made by the learned Adjudicator in refusing her compensation for these matters?
  7. [39]
    At the hearing the agent denied acting maliciously towards Ms Nobile. She described the claim that her behaviour amounted to objectionable behaviour as defamatory. She said she had a job to do and tried to explain to Ms Nobile how the RTRA worked, but Ms Nobile did not understand what was being explained.[7]
  8. [40]
    The learned Adjudicator said this about this head of claim:

In terms of harassment, well, it just seems to be a case of allegation and counter allegation. I can’t make monetary decisions in respect of what might amount to harassment, besides which there is a contradiction here because harassment, to even be looked at in any way, shape, or form, must be, well, more than a one-off, must be of a continuous nature, and if it is of a continuous nature, usually brings about an application by a tenant to bring an end to the tenancy, to terminate the tenancy on the basis of objectionable behaviour, because harassment can amount to objectionable behaviour. But just as I say, poor behaviour – or assertions or allegations of poor behaviour – one towards the other, is, in most cases, usually amounts (sic) to a degree of friction. And I discern here that there probably was a degree of friction between Ms Seymour and Ms Nobile over a period of time. But that doesn’t bring about a loss of enjoyment of the property to the extent as to warrant a claim for compensation – or for loss of amenity, more correctly – but either way, after the end of the tenancy. If it’s so bad during the course of the tenancy, it does amount to objectionable behaviour on the part of an owner or an owner’s agent, you take action during the course of the tenancy, not after.[8]

  1. [41]
    Ms Nobile made no application to end the tenancy on the basis of objectionable behaviour during the course of the tenancy. Many of the complaints were trivial, concerned things that occurred very early in the tenancy, and blame seems to have been attributed to the agent despite many matters of complaint being outside her control such as the crying child and arguing neighbours. The conflict between the tenant and the agent apparently started from the outset of the tenancy when the agent disputed Ms Nobile’s complaints about the condition of the property being poor.
  2. [42]
    The learned Adjudicator had grounds to find most of the complaints were, as he put it, attributable to the friction between the tenant and the agent. That conclusion was open on the evidence. As the adjudicator said, if there was objectionable behaviour, Ms Nobile could have applied to terminate the tenancy, but she did not.
  3. [43]
    On the first day of hearing, the learned Adjudicator asked whether Ms Nobile’s claims for compensation were based on loss of amenity. She said yes. The Adjudicator determined the friction between the tenant and the agent did not amount to a loss of amenity, applying the same reasoning he applied to the claims about the broken dishwasher and air-conditioning unit, namely, that delay on the part of Ms Nobile in making formal complaint resulted in them having little weight.
  4. [44]
    I see no error on the part of the learned Adjudicator in concluding as he did. Ms Nobile has small prospect of success with respect to this complaint.
  5. [45]
    There is no substantial injustice or reasonable argument that there has been an error that should be corrected. Leave to appeal is refused.

Footnotes

[1]  QCAT Act, s 142(3)(a)(i).

[2] Pickering v McArthur [2005] QCA 294, [3].

[3]  Transcript page 2-17, line 29.

[4]  Transcript page 2-22, line 16.

[5]  Ibid line 18.

[6]  Section 419(3).

[7]  T2-15, L32.

[8]  T2-22, L21-36.

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Editorial Notes

  • Published Case Name:

    Rosalea Nobile v Kylie Illidge and Casselman Pty Ltd t/as Ray White Chermside

  • Shortened Case Name:

    Nobile v Illidge

  • MNC:

    [2019] QCATA 89

  • Court:

    QCATA

  • Judge(s):

    Member Howe

  • Date:

    26 Jun 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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