Define Property Agents v Sanderson
[2021] QCATA 129
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- Unreported Judgment
- Define Property Agents v Sanderson[2021] QCATA 129
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Define Property Agents v Sanderson[2021] QCATA 129
Define Property Agents v Sanderson[2021] QCATA 129
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Define Property Agents v Sanderson [2021] QCATA 129 |
PARTIES: | define property agents and piotr swierkowski (applicants/appellants) v mark sanderson and elizabeth sanderson (respondents) |
APPLICATION NO/S: | APL160-20; APL105-21 |
ORIGINATING APPLICATION NO/S: | MCDT153-19; MCDT303-20 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 1 November 2021 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member D J McGill SC |
ORDERS: | In APL160-20:
In APL105-21:
There be no order as to costs in either appeal, unless a party files and serves on the other party within 14 days from this decision submissions in writing setting out the order sought, and the reasons why such order should be made. |
CATCHWORDS: | LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – OTHER MATTERS – rent abatement for less of amenity – from when can abatement be ordered – effect of order – application for leave to appeal – matters not raised at hearing. Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 94, s 417. Carney v Home Rentals Queensland [2020] QCATA 119 Champion v Laterma Pty Ltd [2018] QCAT 392 Gould v Mazheiko [2020] QCATA 10 L J Hooker Stafford v Roberts [2020] QCATA 94 Leddicoat v Walker [2010] QCATA 18 Pedersen v Bradshaw [2021] QCATA 102 Vloedmans v Malseed [2014] QCATA 174 Water Board v Moustakas (1988) 180 CLR 491 |
APPEARANCES & REPRESENTATION: | |
Applicants: | Miller Sockhill Lawyers |
Respondents: | Self-represented 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]On 11 November 2019 the respondents filed in the Tribunal an Application for minor civil dispute – residential tenancy dispute, naming the first appellant[1] as the respondent. They sought orders under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (“the Act”), under s 191 for the lessor to remedy by repairs a failure to comply with maintenance obligations, under s 94, seeking a rent reduction from 15 January 2019 until the repairs were completed, and an order for reimbursement of a payment for power usage dated 17 April 2019.[2] The matter was heard by a Member on 3 February 2020, and there was a short further hearing on 25 February 2020. The Member made a decision on 19 May 2020, directing that certain repairs be carried out by 6 June 2020, that rent be reduced by $175 per week from 19 March 2019 until the repairs were completed, and that the respondent pay $285.30 compensation for excess electricity charges, and $123.20 as a filing fee.
- [2]On 18 June 2020 the appellants filed in the Tribunal an application for leave to appeal or appeal, seeking to have that decision set aside in total. On 19 April 2021 the appellants filed an application to stay those parts of the decision of 19 May 2020 which ordered that money be paid. That application was refused by Daubney J, the President of the Tribunal, on 15 June 2021.
- [3]On 20 November 2020 the respondents filed in the Tribunal an Application for minor civil dispute – residential tenancy dispute, naming the agent as the respondent. They sought an order that the rental bond be returned to them by the Residential Tenancy Authority (“the RTA”). This application came before an Adjudicator on 17 February 2021, when there was no appearance for the agent. An order was made that the bond be returned to the respondents. As well, the Adjudicator ordered that the agent pay to the respondents specified amounts of money, to quantify certain obligations under the decision of 19 May 2020.
- [4]On 26 February 2021 the agent filed an application to reopen that decision, on the grounds that it had not received notice of the hearing, and that the then owner of the premises had not been made a party to the application. That application was refused by the Adjudicator on 18 March 2021. On 15 April 2021 the agent filed in the Tribunal an Application for leave to appeal or appeal from the decision of 17 February 2021. Both applications for leave to appeal are now before me.
Circumstances
- [5]It appears that the respondents had been in residence at the subject property since 2015. The Member described the property as old, and from her reasons it was, by the time of the first hearing, in quite poor condition. On 14 February 2019 the respondents and a representative of the agent signed a General Tenancy Agreement in Form 18a which provided for a periodic tenancy starting on 12 February 2019 at a rent of $475 per week. The agreement did not state the name of the lessor, but identified the second appellant as the lessor’s agent, and gave street and postal addresses for the agent.
- [6]The appellants say in their submissions that on 12 August 2019 the second appellant sold the property. It is not clear whether this was the date of a contract of sale, or the date of settlement. They also say that on 22 August 2019 the representative of the agent and the first respondent agreed in writing to enter into a new lease, which amounted to a mutual written agreement by the parties to terminate the prior periodic tenancy (pursuant to the Act s 277(2)). It is unclear whether this agreement was supposed to have been made on behalf of the second appellant, or of the new owner. The submissions did not say that a new General Tenancy Agreement in Form 18a had been signed by the parties.
- [7]The respondents filed their application on 11 November 2019. On 3 December 2019 an application was filed by the agent to join the second appellant as a respondent, and an order to that effect was made by the Member on 9 December 2019. It does not appear that proper information about him, or proper service details, were disclosed, and notices for him have been sent to the agent. Even the application for leave to appeal does not disclose his personal details.
- [8]The respondents’ application came on for hearing on 3 February 2020, when a representative of the agent, and the first respondent, appeared. The agent at p 1-5 made reference to there having been a lease renewal agreement, but the date of the agreement was not identified and it was not produced. The Member investigated the dispute, and the parties provided information. The hearing was then adjourned, and the Member asked the parties to provide additional information. It came on again briefly on 25 February 2020, when only the first respondent appeared, and all that happened was that it was explained to him that copies of additional documents provided to the Tribunal had to be provided to the agent as well.
- [9]Notice was sent to the parties of a further hearing on 30 March 2020, but that hearing was cancelled that morning, and on 2 April 2020 the registry wrote to the parties inviting any further submissions in writing. On 14 April 2020 the agent made brief submissions by email, referring to the time limit of 6 months in s 419(3), asserting that all maintenance and repairs had been completed in a timely manner and that the photographs in evidence were taken before the repairs were undertaken. It was also said that the tenants had been offered a mutual lease end date if they wanted to go, and that they had “requested and signed another twelve month lease agreement from 23 August 2019 to 20 August 2020.” In context, this presented as a submission that the respondents had been given the opportunity to leave, but had elected to stay. The email does not appear to have been copied to the respondents, and it is not clear that the respondents ever saw it.
- [10]The Member in her written decision identified the problems as palings falling off the fence, windows which cannot be secured, and mould. The mould was attributed to water leaks, from guttering in April 2018, in the hot water system in October 2018, under the kitchen sink on 19 February 2019, and form a burst outside pipe in July 2019. The Member said that mould had been a problem for some time, said that a spray treatment which had been provided was essentially futile, and said that the problem had been allowed to develop so that the premises were not fit to live in; the owner had not maintained the premises in good repair, in breach of s 185(3)(a) and (b). The Member also found a failure to maintain the premises because of windows which could not be locked, and that the electricity accounts of the tenants had gone up by $3.17 per day during the period when the hot water system was leaking, so the tenant should be compensated for that for a period of 90 days, $285.30.
- [11]The Member ordered under s 191 that certain repairs be carried out, under s 94 that the rent be reduced by $175 per week from 19 March 2019 until the repairs were completed, by way of credit to the rental ledger, and that the respondents pay $285.30 for excess electricity, and the filing fee of $123.20.
- [12]The appellants appear to have essentially ignored the decision of the Tribunal, apart from filing the application for leave to appeal. They did not apply the credit to the rental ledger as ordered by the Member. The respondents say that the repairs were not carried out either.[3] The appellants continued to press for the full rental, which the respondents paid until July 2020. Later at one point the agent brought a proceeding against the respondents for a termination order: MCDT 114/20, heard and dismissed on 8 September 2020. I have not seen the reasons for that decision, but the respondents said that, taking into account the earlier order, there were no arrears of rent. If that was the basis of that decision, it was properly made.
- [13]The respondents say that they vacated the premises on 20 October 2020. It appears that each party applied to the RTA for the recovery of rental bond, and conciliation by the RTA was unsuccessful. Hence the application to the Tribunal by the respondents for the return of the bond, filed on 20 November 2020. That application came on for hearing on 17 February 2021. The Adjudicator said that the notice of hearing had been sent to the correct address, and my examination of the file confirms that that is what the file shows.[4] He proceeded under the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”) s 93, and concluded that, as a result of the credit applied by the decision of the Tribunal on 19 May 2020, the respondents were substantially in credit. Accordingly they were entitled to the return of the rental bond.
- [14]The Adjudicator went on to order the agent to pay the respondents the sums of $8,517.9 which was intended to quantify the amount of rental credit ordered by the Tribunal on 19 May 2020, after deducting the rent (at the reduced rate) unpaid between July and October, together with the amounts of $285.30 and $123.30 referred to in that decision, plus a further $125.40, being the filing fee in the application before the Adjudicator. Presumably the rental bond was released to the respondents.
- [15]The application to reopen that hearing was based on the grounds that the agent had not received notice of the hearing, that the owners were the correct parties, not the agent,[5] and that the earlier decision was subject to appeal. The application was rejected on the basis that, under the Act s 206, the application was properly brought against the agent, that the notice had been served as required under the QCAT Act and the rules, and that the earlier Tribunal decision had not been stayed. No appeal has been brought against that decision, which appears entirely correct.[6]
Application for leave to appeal
- [16]By the QCAT Act s 142(3)(a)(i) the appellants require the leave of the Appeal Tribunal to bring this appeal. As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error, and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the appellate court or tribunal would be to the public advantage.[7] In deciding whether grounds for leave to appeal have been shown, it is relevant to consider that the proceeding was a minor civil dispute, so that the obligation on the Tribunal was to make orders it considered to be fair and equitable to the parties to the proceeding in order to resolve the dispute: the QCAT Act s 13(1). The Tribunal was also required to comply with the QCAT Act s 28 and s 29.
- [17]In the present case, in respect of the first application for leave to appeal, I consider that it is relevant to the question of whether leave should be granted that the appellants seem to have essentially ignored the decision of the Tribunal. There is another consideration which is relevant, and that is that the appellants should not be permitted to advance on appeal a factual case which was not advanced at first instance, particularly in circumstances where the respondents could have raised factual issues if the matter had been ventilated at first instance.[8] Another consideration which I consider is relevant is whether the Tribunal at first instance was led into error by the appellant, or, where the appellant was represented by a lawyer or, in the case of a tenancy matter, by a real estate agent, who can be reasonably expected to be conversant with the requirements of the Act, the appellant’s representative failed at the hearing at least to attempt to lead the Tribunal away from error.
First Application for leave – Appellants’ arguments
- [18]The appellants submitted that the relief under the Act s 94 was not properly given, because there had been a new tenancy agreement entered into after the problem arose and before the respondents’ application was filed, so the tenancy in place at the time of any substantial decrease in the amenity of the premises had ended, and there had been no substantial decrease in the amenity of the premises after the new tenancy agreement had been entered into. As well, it was submitted that there was insufficient evidence to demonstrate that there were excessive electricity charges due to a fault in the hot water system. The latter point clearly does not justify a grant of leave, given the small amount involved, the fact that the rules of evidence do not apply, the terms of the QCAT Act s 13(1), the fact that the reasons of the Member are not obviously wrong and the absence of any point of principle.
Consideration – s 94
- [19]On the face of it the former point appears sound. It is well established that s 94 does not authorise a retrospective reduction in rent, at least in a situation where the reduction arises as a result of an order of the Tribunal.[9] As well, the section is concerned with a change since the beginning of the tenancy, and does not authorise a reduction in rent for deficiencies in amenity which existed then and have not been remedied.[10] These matters were established by the decision of Daubney J in at [18], where his Honour discussed the earlier decisions on the point.
- [20]The difficulty for the agent however is that I do not consider that this point was raised properly at the hearing. There was mention at the hearing of a new tenancy agreement, but it was not produced,[11] and more importantly the proposition that this affected the right to obtain relief under s 94 was not raised expressly.[12] The mention of a new agreement might have been sufficient, if the matter were before a Member who was quite familiar with tenancy disputes under the Act, to alert the Member to this issue, but that did not occur in this case, and I do not consider that the agent did sufficient to raise the issue at the hearing.
- [21]Had it been raised there, the proceeding may well have taken a different course. In submissions on the appeal the respondents disputed the existence and effect of a new tenancy agreement. As it happens I know that there was a new agreement signed, because a copy of it was attached to the Application for the return of the rental bond, filed on 20 November 2020. But it is not evidence in this application,[13] and the appellants have not filed an application for leave to rely on fresh evidence on the appeal, as required by direction 4 of the directions made on 22 July 2020. So I should disregard it in this application.
- [22]Apart from that, there was scope for argument about the effect of the new tenancy agreement. Since on its face it was between the same parties, the lessor being shown as the agent in each case, if the only change was to convert a periodic tenancy to a fixed term tenancy, it was arguable that it operated in substance as a variation of the existing tenancy agreement rather than a new tenancy agreement.[14] The mould seems to have been a progressively worsening problem, and the respondents may have been able to satisfy the Member that there had been a substantial decrease in amenity since 23 August 2020.[15] They may also have been able to apply instead for compensation for breach of the obligation of the lessor under the Act s 185(2) or (3). That can be done at a hearing[16] although it is too late to raise it for the first time on appeal.[17] The respondents had received advice from a tenants organisation, and may hove sought further advice after an adjournment. There are in short a number of things that might have happened had this point been raised properly at the original hearing. In those circumstances, it would be unfair to the respondents to allow it to be raised for the first time on appeal.
- [23]There is however a related point where the Member seems to have fallen into error in relation to an issue which was decided, the time of commencement of the rent reduction. Although I have not found a decision precisely on point, the reasons in Gould (supra) and other decisions[18] speak of the need for the application for relief under s 94 to be filed during the tenancy, and this is consistent with s 94(4)(a). It appears to me to follow that an order reducing rent under s 94 can be made to take effect from the date of filing the application in the Tribunal, rather than the day on which the Tribunal makes a decision on the application.
- [24]As others have observed, the drafting of s 94 leaves much to be desired.[19] There is no express provision in the section stating from when any order for the reduction of rent is to operate. One possible interpretation would be as from the change in the premises which leads to the reduction under s 94, but I consider that the decisions that an application under s 94 cannot be filed after the end of the tenancy are inconsistent with that approach. That leaves a choice between the date the application is made to the Tribunal (ie filed in the Tribunal) or the date of the decision of the Tribunal on the application.
- [25]It would be reasonable to expect that the legislature would not have intended that any delays in the course of the proceeding in the Tribunal would operate to prejudice the tenant.[20] If the latter interpretation were correct, it would be to the advantage of the lessor to find excuses to delay a hearing, or even to terminate the tenancy before the hearing. This section appears to be a consumer protection provision of the Act, and it should therefore be given an interpretation which furthers its consumer protection objective.[21] Accordingly I consider that the Tribunal has power under s 94 to reduce the rent as from the date the application is made to the Tribunal.[22] It follows that under s 94 the limit of the power of the Tribunal was to reduce the rent as from 11 November 2019.
- [26]There is however another factor which operates here. On the basis that an order under s 94 to decrease rent can be made only as from when the application is made to the Tribunal, that makes the date on which the application is made relevant to an issue before the Tribunal. The Act s 417 provides that, in such a situation, when a dispute is referred to the RTA for conciliation, the date of the resolution request is taken to be the date the application to the Tribunal is made. The wording of s 417 is quite general, and on the face of it wide enough to cover an application under s 94 as well as an application under s 419. The function of s 417 is to complement the requirement in s 416 that there be a request for dispute resolution before an application is made to the Tribunal, unless the application is an urgent application, defined in s 415 in a way that does not include an application under s 94. The logic of this is that, had it not been for s 416, an application could have been filed in the Tribunal on that day.
- [27]I am not aware of any authority on whether s 417 applies to an application for rent reduction under s 94.[23] In principle however that does seem to me to be correct, given that s 416 applies to such an application. There was a dispute resolution request made by the respondents on 16 August 2019, and so the relevant date from which the rent reduction could have run was 16 August 2019. On that basis the rent reduction ordered by the Member was 21 weeks and 3 days too long, which at $175 per week comes to $3,750.
- [28]The respondents in their application sought a reduction from a date in January 2019. There was no discussion of this at the hearing, and the Member allowed a reduction from 19 March 2019, on the basis that the main water leak was on 19 February 2019, and the lessor should be allowed one month to attend to the obligation to fix up the premises. This was an error. Again, it does not appear that anything was done by the agent to draw the attention of the Member to the relevant limitation. There is however the difference that this did not depend on the proof of any additional facts,[24] and there was less scope for the respondents to avoid this issue, or otherwise change course, if the matter had been raised at the hearing.
- [29]It is possible that there could have been some other course adopted, such as an application for compensation. The Member referred to the six months limitation period for compensation claims, although by reference to when the matter was filed in the Tribunal. That is the effect of s 419(3), but since this application was preceded by a dispute resolution request to the RTA made on 16 August 2019, the effect of the Act s 417 was that the making of that request is treated as the time when the application to the Tribunal was made. So the six months period ran from 16 February 2019, just before the leak which the Member regarded as having caused the main problem with mould in the kitchen.
- [30]On the whole I consider that it is unlikely that, if that situation had arisen at the hearing, the respondents would have pursued possible relief under s 419 in preference to relief under s 94, corrected in respect of the starting date. On that basis the position appears to be that the respondents will not be materially prejudiced by the point being taken or acted on for the first time on appeal.[25] In those circumstances it is appropriate to correct that error on appeal.
- [31]It does not follow that leave to appeal generally must be given. The appellants require leave to appeal. The Tribunal has power to apply a condition on its decision,[26] and accordingly it is open to grant leave to appeal on condition that the appeal be confined to one or more specific grounds. I grant leave to appeal, on condition that the appeal be limited to the ground that the Member erred in ordering a decrease in rent from prior to the time when the respondents are taken to have made the application to the Tribunal. I will not allow other grounds to be raised on this appeal, largely for the reasons already stated. As well, it is clear from the reasons of the Member that the premises in question were in a poor condition and had not been maintained properly, so that the outcome overall is fair and equitable to the parties. I am also not impressed by the generally lackadaisical way in which the agent conducted the proceeding at first instance,[27] and by the failure to comply with the decision of the Tribunal. In these circumstances, I am not willing to grant leave except to the extent that it is clearly justified.
- [32]Accordingly paragraph 5 of the decision of the Tribunal in the proceeding MCDT153-19 is varied, by deleting the date “19 March 2019” and inserting the date “16 August 2019”, and by adding at the end “in the sum of $6,925 to the date of this decision.” The appeal is otherwise dismissed. (If I were wrong about the s 417 point, the date to be inserted would be 11 November 2019, and the amount to the date of the decision $4,926. And if I were wrong about the reduction taking effect before the decision, the date to be inserted would be 19 May 2020, and there would be nothing added at the end.)
Second application for leave – appellants’ arguments
- [33]The grounds of the second application for leave to appeal, as set out in the annexure, are:
- (a)The agent did not receive a copy of the application or advice that the application was to be heard.
- (b)The respondents failed to serve the application as required by QCAT rule 19(1).
- (c)The application should have included the property owners, particularly the new owner.
- (d)Orders were made by way enforcement of MCDT135-19 when that decision was subject to an application for leave to appeal, and an application for stay.
- (a)
Consideration
- [34]As to the first and second points, Rule 20 provides that, in the case of an application under the Act, a copy of the application is to be served by the principal registrar of the Tribunal. In practice this is done by the local registry. I cannot find on the file a document confirming that a copy of the application was sent to the agent but I expect that it would have been. There is a document on the file confirming that the notice of hearing was posted to the agent, addressed to the post office box stated in the tenancy agreement, which was the address for the respondent set out in the application,[28] posted on 1 December 2020 for a hearing on 17 February 2021, so ample notice was properly given. It is well established that a document can be properly served even if it has not in fact been received.
- [35]As to the third, the tenancy agreement made no reference to an owner of the property, either the old owner or the new owner, and there is no evidence that notice of the identity of the new owner was ever given to the respondents. The matter is covered by the Act s 206, which authorises the proceeding to be taken against the agent. In those circumstances, this ground is utterly without merit as a ground of defence, although an agent may want to join the owner for the purpose of obtaining an indemnity for any liability to a tenant. It appears that, when the application to reopen was filed, there was also an application filed for an order that the old owner and the new owner be joined; but no order was made on that application, since the application to reopen was dismissed. There has been no direction joining the second appellant as an appellant, and it follows that the second appellant is not a party to this application for leave to appeal.
- [36]There is however substance in the fourth ground, although the mere fact that an application for leave to appeal and an application for a stay have been filed do not in themselves justify leave to appeal. But in circumstances where the decision of the Tribunal was based on that part of the earlier decision of the Tribunal which has been varied by the appeal just dealt with, it would be appropriate to make a consequential variation to this decision.
- [37]There is however a more serious deficiency in those parts of the decision of the adjudicator which involved the enforcement of the earlier decision. There was nothing in the application of the respondents which would have given notice to the agent that it was exposed to an order by way of enforcement of the earlier decision in this way, and no evidence that any notice of intention to seek such relief was given. The Tribunal is required to act in accordance with the principles of natural justice,[29] and in circumstances where the agent was not present and had not been given proper notice that it was exposed to such an order being made, it was a breach of the rules of natural justice to make such an order. On this basis, the parts of the decision which went beyond the scope of the respondents’ application must be set aside; that is, paragraph 3 of the decision of the Tribunal of 17 February 2021.
- [38]There is however no basis to interfere with the other parts of the decision. The variation I have made to the earlier decision would still leave the respondents substantially in credit on the rental ledger at the time of the termination of the tenancy, so there was no rent owing, and the rental bond was rightly returned to them. What is left of the decision deals completely with the relief sought by the respondents in their application, by disposing of the whole of the rental bond, and by ordering the payment by the agent of the filing fee. There is therefore no unresolved part of that application to be returned by the Appeal Tribunal to the Tribunal.
- [39]On the second application therefore I grant leave to appeal, and allow the appeal to the extent of setting aside paragraph 3 of the decision of the Tribunal of 17 February 2021.
Costs of the appeals
- [40]That leaves the question of costs. My preliminary view is that there should be no order as to the costs of either appeal. The appellants have been substantially unsuccessful in the first application for leave to appeal, and although they have had some success in the second application, indeed have probably been successful in what is in practice the more important part of the proceeding, it was actually on a ground not specifically averted to in their submissions. My view is that the appellants’ problems have been largely of their own making. However, if they want to seek an order for costs, they may file and serve submissions in writing setting out the order sought, and their submissions in support, within fourteen days of this decision. If such submissions are received, I will give further directions as appropriate. Otherwise, there will be no order as to costs in either matter.
Footnotes
[1]It is convenient to refer to the first appellant as “the agent”.
[2]The basis for this was not stated in the application. Presumably it was sought as compensation for breach of the lessor’s obligations.
[3]At the hearing on 17 February 2021 Mr Sanderson said that the kitchen was replaced, but straight over the mould, shortly before they left the premises.
[4]The same address (a Post Office Box) was included on the Application for leave to appeal.
[5]This was an extraordinary assertion, in circumstances where the tenancy agreement did not even disclose the name of the owner, or any address other than the address of the agent.
[6]If the agent had been able to show some possible ground of defence of substance, the fact that it had not been heard earlier would have been a good reason to reopen the hearing: cf National Mutual Life Association of Australasia Ltd v Oasis Developments Pty Ltd [1983] 2 Qd R 444.
[7]Crime and Corruption Commission v Lee [2019] QCATA 38 at [12], citing appellate authority. See also Campbell v Queensland Building and Construction Commission [2021] QCATA 34 at [17].
[8]L J Hooker Stafford v Roberts [2020] QCATA 94 at [13]; Water Board v Moustakas (1988) 180 CLR 491.
[9]The position is I expect different if the premises are unusable and the rent abates without the need for a Tribunal order.
[10]Vloedmans v Malseed [2014] QCATA 174 at [15], [17]; Champion v Laterma Pty Ltd [2018] QCAT 392 at [76]. It does not appear that a rent reduction can be ordered for a breach of the Act s 185(2).
[11]So far as I can see the agent put little evidence before the Tribunal, at or after the hearing. The reasons of the Member do not refer to any except some inspection reports.
[12]The Member at p 28 said that “the landlord’s obligations continue.” That was the cue to raise the effect of the new agreement on relief under s 94, and that was not done.
[13]The two applications for leave to appeal remain separate proceedings: direction 1 of directions made 21 April 2021.
[14]For a discussion of whether there is a variation or a new contract, see generally Cheshire & Fifoot’s Law of Contract (8th Aust. Ed. 2002) para [22.3].
[15]The mould treatment of the cupboards, which the Member described as futile, took place just after the new tenancy agreement is said to have commenced.
[16]Pedersen v Bradshaw [2021] QCATA 102 at [3]. There would necessarily be no problem with the six months time limit.
[17]Carney v Home Rentals Queensland [2020] QCATA 119 at [20] – [22].
[18]In particular, Champion (supra) at [72] after a detailed analysis of relevant decisions.
[19]See for example Gould (supra) at [11].
[20]The fact that an application under s 94 is not made an urgent application for the purposes of s 415 is consistent with the earlier date, since one would expect such an application to be classed as urgent if the reduction could only take effect from the date of the decision.
[21]Acts Interpretation Act 1954 (Qld) s 14A.
[22]An analogous consumer protection provision of the Act is s 343 which permits termination of a tenancy for excessive hardship. In Leddicoat v Walker [2010] QCATA 18 A Wilson J, the then President of the Tribunal, refused leave to appeal where an order for termination had been made to take effect the day after the application was filed in the Tribunal. That supports my approach.
[23]The point was argued but not decided in Nobile v Illidge [2019] QCATA 89, where the claim under s 94 was rejected on other grounds.
[24]A notice from the Authority giving the date of the request was before the Tribunal.
[25]The fact that the relief under s 94 is less generous is not relevant prejudice. The issue is prejudice compared with the situation if the point had arisen at first instance.
[26]The QCAT Act s 114(a).
[27]Not providing a document setting out the position of the appellants, to assist the Tribunal to identify the matters in issue; not tendering relevant documents; not raising relevant issues so as to assist the Member.
[28]It was also an address given in the Application for leave to appeal.
[29]The QCAT Act s 28(3)(a).