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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Varnakulasingam & Anor v Singh  QCATA 35
SHASHI KANT varnakulasingam
michaedon pty ltd t/as remax colonial
MCDT 2424/18 (Brisbane)
27 March 2020
On the papers
Leave to appeal is refused. This means that the appeal fails.
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN NO APPEAL LIES – where an Adjudicator awarded compensation for water ingress into a tenanted unit – where it is said wrong principles were applied in assessing the amount of compensation and it was excessive – whether any reasonably arguable grounds of appeal
REASONS FOR DECISION
- This is an appeal from the decision made by an Adjudicator in a residential tenancy dispute, where Kulwant Singh was the tenant, Shashi Varnakulasingam was the lessor and Remax Colonial were the property managers.
- There was a flood from the unit above the tenanted premises. This damaged some of the tenant’s possessions and adversely affected his and his daughter’s occupation of the tenanted premises.
- The tenant’s application for compensation was heard by an Adjudicator in Brisbane. The Appeal Tribunal has obtained a transcript of the hearing and this shows what happened. Mr Singh attended the hearing as did the property manager. Both gave evidence on oath and made submissions to the Adjudicator.
- The Adjudicator decided that because of the water ingress the lessor should pay compensation to the tenant. There is no appeal against that finding. The appeal is about the amount the Adjudicator awarded in compensation. The order made by the Adjudicator was for $1,650 for damage to a sofa which was part of a lounge, $1,000 for damage to a mattress, and $200 for additional electricity use. The Adjudicator also awarded compensation equivalent to six weeks’ rent, at the rate of $295 per week, which came to $1,770.
- There was also an award to the tenant of $500 for loss of the ceiling fan and light for a period of time and for an issue with the stove. This is not properly the subject of the appeal for reasons given below.
- The grounds of appeal appear in the application for leave to appeal or appeal, and in submissions dated 11 October 2019 provided in response to directions made by the Appeal Tribunal.
- The grounds are:
Ground of appeal 1
The Adjudicator stated that he had not read the lessor’s counter application or any of the lessor’s evidence.
Ground of appeal 2
The evidence before the Adjudicator was insufficient for the findings made, and compensation given for the damage to the sofa which was part of a lounge, and compensation for the damage to the mattress was excessive.
Ground of appeal 3
The award of $200 for compensation for loss of electricity was excessive and unsupported by evidence.
Ground of appeal 4
The compensation equivalent to six weeks’ rent awarded by the Adjudicator should have been dealt with as a rent reduction claim under section 94 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRAA), and there was no notice to remedy breach. In any case, this amount was excessive on the evidence.
- With respect to the award for the loss of use of the ceiling fan and the issue with the stove, in this appeal there is a request for a ‘review’ of the Adjudicator’s decision about this. Although arguments are put forward in the appeal attempting to show why, on such a review, the outcome should be different, there is no attempt to explain the way in which the Adjudicator was in error in law, or reached an untenable finding of fact. The difficulty with this is that an appeal is not an opportunity for a review of the original decision. In must be shown that the Adjudicator made an appealable error on the material before the tribunal. Showing that the Adjudicator may have formed an opinion about the correct outcome of the application, when others might form a different opinion, is insufficient to bring an appeal. In the circumstances, it would be wrong to regard the award of $500 as under appeal.
- An issue is raised in the appeal submissions about the tenant’s responsibility to insure his own property. But this is irrelevant to any question of compensation. This should not be regarded as a ground of appeal.
Ground of appeal 1
- It is true that the Adjudicator informed the parties that he had not had an opportunity to read the files on the case. This often happens in the busy minor civil dispute jurisdiction. It would appear that the Adjudicator explained this to encourage the parties to inform him about the case, because he asked both sides about the files and to explain what their cases were about. The property manager explained the counter application, which was for unpaid rent in the sum of $3,835 and some costs. This was a very simple claim and there could have been no disadvantage in the Adjudicator’s not reading it before the hearing.
Ground of appeal 2
- The evidence from Mr Singh about the lounge was that about half of it, the sofa part, was damaged by the water coming from the ceiling when he was at work. It swelled and he threw it out. The whole lounge had cost $3,300 to purchase new three years before. He described the sofa from photographs of matching chairs, but he did not have a photograph of the sofa itself.
- In the appeal, it is said that Mr Singh should have produced photographs or receipts for the purchase of the sofa. In effect it is said that the Adjudicator should not have accepted Mr Singh’s evidence about the purchase cost of the sofa. But there was no reason for the Adjudicator not to accept Mr Singh’s evidence about it. Mr Singh explained why he did not have a purchase receipt – the lounge was purchase for him by family as a gift.
- Also in the appeal, it is said that the Adjudicator made no allowance for depreciation of the sofa. Whilst it must be true that the market value of the damaged sofa was much less than the amount awarded, this is not always the correct level of compensation when goods are damaged. Here it appears that the Adjudicator must have assessed the compensation on the basis that it would be very difficult to replace the sofa with a second hand one which matched the existing lounge, so that either Mr Singh would need to purchase a new sofa, which would probably cost about $1,650 or perhaps more, and possibly may not match the existing lounge, or Mr Singh might have to replace the whole lounge which would cost a lot more. Viewed in that way, the award of $1,650 was clearly justifiable.
- On the question of the mattress, Mr Singh’s evidence was that it was a queen size mattress which cost $1,800 three years before. It was destroyed and had to be disposed of. In the appeal, it is said that Mr Singh should have produced photographs of the damaged mattress or some evidence of the cost of a replacement. The Adjudicator however, clearly accepted Mr Singh’s evidence about the purchase cost of the sofa and worked on that basis. Although in the appeal it is suggested that Mr Singh was wrong about the disposal date of the mattress, this information was not before the Adjudicator. There was no reason for the Adjudicator to reject Mr Singh’s evidence about the purchase cost of the mattress.
- In the appeal it is said that the award for the damage to the mattress in the sum of $1,000 was excessive since mattresses can be purchased from $359 and can go up to $1,000 and above.
- When assessing the award, the Adjudicator adjusted the cost of the mattress new, to allow for depreciation. On that basis he awarded $1,000 compensation. Clearly this approach was justified in this particular matter.
Ground of appeal 3
- It is said that the additional electricity used by the tenant must have been less than the amount awarded. Figures are given in the application for leave to appeal or appeal which tend to show this.
- Also it is said in the appeal that the dryers were in the unit for two weeks and not six weeks as the tenant said. The difficulty with this is that the Adjudicator was working with the evidence provided at the hearing. Mr Singh did not say in the hearing that the dryers were there for six weeks, he said it was more than three weeks, and they were working day and night.
- The Adjudicator must have accepted the case as presented by Mr Singh and on that basis it is clear that the compensation ordered under this head was justified.
Ground of appeal 4
- It is said that the claim for compensation should have been viewed as a rent reduction claim under section 94 of the RTRAA instead of as a compensation claim. It is unclear what is said to follow from this. There is no appeal against the decision by the Adjudicator that compensation should be awarded. Its amount does not seem to be affected by the route taken to reach that decision.
- It is said that the tenant should have issued a notice to remedy breach as was done in Rental Express Pty Ltd v Finch & Sweeney  QCATA 149. But it is not said what follows for failure to do so. If it is suggested that a compensation claim cannot be brought without such a notice, then this is incorrect. Rental Express was concerned with a tenant who wished to terminate the tenancy – hence the relevance of a notice to remedy breach in that case.
- As for the amount of compensation awarded, it is clear that the flood suffered in the unit was unusually severe. The property manager explained at the hearing that access to the upstairs unit could not immediately be obtained, and so it was several days before the source of the leak could be identified and the leak stopped. It is clear that because of this, a considerable amount of water entered Mr Singh’s unit. The evidence at the hearing was that even after the leak was stopped, there was still ‘an awful lot of water that was still tracking through the property’, and evidence of the water ingress even appeared on the outside of the brickwork. This was worsened by the fact that even after the leak had been stopped, it then took about eight weeks for the body corporate to get access to the unit upstairs to remove the soaked carpet.
- Mr Singh’s evidence about this was that the water ingress was not confined to the lounge room, it was in the kitchen and also in the hallway (as admitted by the property manager). Apart from the damage to his furniture, his life and that of his daughter was disrupted in some serious ways over six weeks. The body corporate ran dryers in his unit for more than three weeks working day and night, and the ceiling fan and light could not be used because of the flood. He said he had not given permission for his electricity to be used to run the dryers.
- In this appeal it is said that because only the lounge room was affected and the tenant still had full use of the kitchen, two bedrooms, bathroom and toilet the compensation equivalent to six weeks’ rent was excessive. In response Mr Singh’s submissions are that in fact it was only two bedrooms that were not affected by the water ingress.
- Although at first sight, assessing the compensation as equivalent to six weeks’ rent does seem generous towards the tenant, it is clear it was not assessed just on the basis of the area of the unit that was affected by the flood over that time. Instead it appears that it must have taken into account the extreme inconvenience and distress that Mr Singh and his daughter suffered as a result of the events, taking into account the loss of possessions, time which Mr Singh had to take off work, the extended time before the leak was stopped and then the extended time to dry out the property. It must have made living in the unit extremely miserable over several weeks. In the circumstances it cannot be said that the Adjudicator’s decision about the compensation was outside the applicable principles.
Conclusions in the appeal
- In matters such as this, leave to appeal can only be given if there appears to be a reasonably arguable ground of appeal. In this appeal there is no reasonably arguable ground of appeal and so leave to appeal should not be given. This means that the appeal fails.
- Published Case Name:
Shashi Kant Varnakulasingam & Anor v Kulwant Singh
- Shortened Case Name:
Varnakulasingam & Anor v Singh
 QCATA 35
27 Mar 2020