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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
McGrath Estate Agents v Korattiparambil & Anor  QCATA 68
mCgrath estate agents
ORIGINATING APPLICATION NO/S:
8 May 2020
On the papers
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – where the appellant had brought residential tenancy dispute proceedings against the respondent tenants claiming minor compensation – where Justices of the Peace allowed the respondent tenants compensation without a counter application or other application being filed – where the claims were for loss amenity – where the tenancy had ended and no loss of amenity claims were available to the respondents – where leave to appeal granted – where appeal allowed
Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 94, s 419(3), s 420
Bourke v Kenjad Rentals  QCATA 81
Gould v Mazheiko & Gill  QCATA 10
Pickering v McArthur  QCA 294
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
- The applicant, McGrath Estate Agents (‘the Agents’), acting for a lessor at Coorparoo, commenced minor civil dispute – residential tenancy proceedings against the respondent tenants claiming the costs of replacing a kitchen rangehood and some tiles on a balcony from the bond.
- The respondents had commenced the tenancy on 8 July 2017 and vacated on 2 November 2018.
- At a hearing before Justices of the Peace on 13 June 2019 the tenants raised complaints about defective air-conditioning in the house for a significant period from start of the tenancy and loss of amenity caused the tenants by renovations done to another unit on the floor above them.
- The Justices of the Peace awarded the Agents the claims for cost of replacement of the rangehood and the cost of replacing 7 tiles on the balcony in an amount of $603.80 but also allowed the tenants an amount of $1,260 loss of amenity for the faulty air-conditioners and $420 loss of amenity caused by the renovations for 6 weeks. In end result the Agents were ordered to pay the tenants $1,076.20 and the bond of $1400 was ordered to be refunded to the tenants.
- The Agents seek leave to appeal that decision.
- 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.
- Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.
- The grounds of appeal are essentially two-fold:
Ground 1. The Justices of the Peace erred in awarding the tenants compensation where the tenants had filed no claim or counterclaim seeking relief.
Ground 2. The Justices of the Peace erred in awarding compensation to the tenants where any claim for relief was outside the time permitted to claim relief pursuant to s 419(3) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘RTRAA’).
The Justices of the Peace erred in awarding the tenants compensation where the tenants had filed no claim or counterclaim seeking relief.
- The only application before the Justices of the Peace was the application by the Agents seeking part of the bond for limited compensation items subsequent to the tenants vacating the leased premises.
- There was no application filed by the tenants for relief.
- The Justices of the Peace awarded the tenants compensation on the basis of loss of amenity. The Justices of the Peace gave reasons for decision following the hearing but gave no explanation how they concluded the tenants were entitled to bring a claim for loss of amenity without application made and the Agents being given notice of it.
- A claim for loss of amenity is made pursuant to s 94 of the RTRAA which is relevantly entitled rent decreases:
- This section applies if the premises—
- are destroyed, or made completely or partly unfit to live in, in a way that does not result from a breach of the agreement; or
- no longer may be used lawfully as a residence; or
- are appropriated or acquired compulsorily by an authority.
- This section also applies if—
- services, facilities or goods to be provided to the tenant under the agreement are no longer available or are withdrawn other than because the tenant failed to meet the tenant’s obligations under the agreement; or
- 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 accordingly or, if an order for a decrease in the rent is made by a tribunal, to the extent stated in the order.
- A tribunal may make an order for a rent decrease only if—
- the tenant applies to the tribunal for the order; and
- if this section applies because of subsection (1)—the premises are partly unfit to live in.
- The provision specifically states that the tenant must apply to the Tribunal for an order before any reduction in rent can be given. Where there is no application to the Tribunal seeking such relief the s 94 jurisdiction is not enlivened.
- Further what is available under s 94 is a reduction in rent, not general compensation which is provided for in s 420 of the RTRAA for breach of the terms of a residential tenancy agreement.
- There was no scope to award a reduction in rent because the tenancy had ended without application being made.
- The Justices of the Peace fell into error of law in awarding compensation for loss of amenity in these circumstances.
- The error in law made by the Justices of the Peace is clear. The award against the Agents constituted a substantial injustice against them. Leave to appeal must be granted.
- Regardless of that conclusion it is appropriate to also consider the second ground of appeal.
The Justices of the Peace erred in awarding compensation to the tenants where any claim for relief was outside the time permitted to claim relief pursuant to s 419(3) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld).
- The time limit set by s 419(3) of the RTRAA applies to claims arising out of a breach of a term of a residential tenancy agreement. Claims for reduction of rent for loss of amenity are not necessarily associated with breaches of the tenancy agreement. They arise in consequence of the loss of amenity rather than breach of agreement:
rent relief, by contrast, is not compensatory in nature. It focusses on fairness not fault and derives from the restitutionary theory of unjust enrichment and the equitable doctrine of abatement not the law of compensation.
- Accordingly a claim for loss of amenity is not limited by the time requirement for complaints about breach of the terms of the tenancy agreement being made within 6 months of the relevant person (lessor or tenant) becoming aware of the breach. They are however limited in time by the requirement that they be made during the term of the tenancy as explained above.
- Some matters of complaint that could be brought as complaints of loss of amenity under s 94 may also constitute breaches of the terms of the tenancy agreement. The complaint about the air-conditioners might potentially have qualified for both a loss of amenity claim and breach of the lessor’s obligations to appropriately maintain the property. The complaint about inconvenience of the renovation work done to the unit above could only have qualified, one would think, as a loss of amenity claim.
- Any potential claim for the air-conditioners was out of time under s 419(3) in any case.
- Leave to appeal is granted.
- The claim by the Agents for minor compensation was accepted by the Justices of Peace below. There was clearly sufficient evidence to support the claim that it was the poor maintenance by the tenants that caused irreparable damage to the rangehood and evidence that the tenants’ pot plants on the balcony caused permanent damage to 7 tiles. The cost of replacement for those items seemed reasonable to the Justices of the Peace and they seem reasonable to me.
- Given the error is one of law the decision by the Justices of the Peace may be set aside and the Appeal Tribunal may substitute its own decision. That is the appropriate course to take here.
- The order of the Justices of the Peace made 13 June 2019 is set aside.
- There is no evidence that the monies ordered by the Justices of the Peace to be paid by the Agents to the tenants have been paid. The bond however will have been paid out to the tenants by the Residential Tenancy Authority.
- The appropriate order to finalise the matter is that the respondent tenants pay the Agents compensation of $603.80.
- Published Case Name:
McGrath Estate Agents v Afdal Korattiparambil and Ashny Ali
- Shortened Case Name:
McGrath Estate Agents v Korattiparambil
 QCATA 68
08 May 2020