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Thurley v Vokes & Vokes QCATA 149
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Thurley v Vokes & Vokes  QCATA 149
ORIGINATING APPLICATION NO/S:
MCDT 01049/19 (Brisbane)
15 December 2021
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 lessor appeals against a decision made by a panel of two justices of the peace in a residential tenancy dispute – where the grounds of appeal are that the panel did not give sufficient weight to certain things and was inconsistent in its compensation award – whether any reasonably arguable grounds of appeal
Residential Tenancy and Rooming Accommodation Act 2008 (Qld), s 94, s 416, s 417, s 419
Campbell v Donker  QCATA 6
Gould v Mazheiko & Gill  QCATA 10
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
- In this appeal it is said that a panel of two justices of the peace was in error when deciding a residential tenancy dispute, because it gave insufficient weight to various things, and that it was inconsistent in the compensation award which was made.
- Vanessa and Michael Vokes were tenants of a property in Taringa, and they brought a residential tenancy claim against the lessor Dean Thurley, based on repair and maintenance problems at the property. They were successful in the claim and the panel ordered the lessor to pay them the sum of $3,438.
- The tenancy agreement was for a fixed term running from 7 September 2018 to 5 September 2019. The tenants left early in July 2019, by agreement with the lessor. The rent was $1,150 a week.
Whether the claims were properly made
- One issue which I have to deal with in this appeal is whether, for reasons not raised in the appeal, the panel had jurisdiction to make the orders it did. One reason this needs to be examined is because the claims were brought as rent reduction claims under section 94 of the Residential Tenancy and Rooming Accommodation Act 2008 (Qld) (RTRAA) and these are now known to be problematical in some circumstances.
- The tenants had three heads of claim each described as ‘rent reduction - failure to repair’. In the detail attached to the application all the claims were expressed to be made under section 94.
- The three claims were for:
- (a)$2,047 for a problem with the lights; the amount claimed calculated as an amount per day with some additional amounts for loss of earnings and cost of wasted electricity;
- (b)$1,940 for a problem with the swimming pool; the amount claimed calculated as an amount per week plus the cost of chemicals and work done to the pool;
- (c)$480 for a problem with the hot water system, claimed as an amount per day.
- These claims would have been problematical as claims for reduction for rent under section 94 because there has been a developing line of authority in the tribunal to the effect that section 94 can only be used to claim reductions for rent in the future, and cannot be used to claim reductions in rent retrospectively, although there may be differing views about how this should work in practice.
- However, it can be seen from the way the claims were argued and how the amounts claimed were calculated in the application that they were in fact claims for compensation for the lessor’s breach of the repair and maintenance obligations. This is shown by three things: the references in the application to the lessor’s breaches of section 185 (which contains the lessor’s repair and maintenance obligations), the use of Forms 11 (notices to remedy breaches, which could operate to end the tenancy early had that been in issue) and by the fact that there were various heads of claim for consequential losses. None of these things would have had relevance or would apply to a claim under section 94.
- It can also be seen that the panel decided the claims as if they were compensation claims for the lessor’s breach of the repair and maintenance obligations. This is shown by the fact that the panel concentrated on whether the lessor was in breach in not arranging repairs quickly enough. It is true that the panel assessed compensation based on the daily or weekly rent paid, but this is a legitimate way of making such calculations to achieve a level of compensation for a breach. This is because the tenants had paid a weekly amount but had not received full enjoyment for their outlay. It does not mean that the panel treated the claims as being made and decided under section 94.
- Since the claims were really claims for compensation for breach of the repair and maintenance obligations in the tenancy agreement, I need also to consider whether they were brought in time, bearing in mind there is a time limit of six months in such claims from the tenants becoming aware of the breach. The six months ends when the lessee makes a dispute resolution request. Here the date of the dispute resolution request was 18 April 2019. The time limit here was not a problem because the lighting and pool problems first occurred within the six months before 18 April 2019 and the hot water problem first occurred just after this date.
- One other thing is required before the tribunal has jurisdiction to hear such a claim and that is that there should have been an attempt to conciliate the issue in the claim with the Residential Tenancies Authority. In this respect, although the dispute resolution request was two days prior to the first occurrence of the hot water issue it seems likely that the hot water issue would have been included in any conciliation had it taken place. On that basis it is possible to say that the conciliation requirements were satisfied.
- The tenants received a notice of unresolved dispute dated 9 May 2019 and brought the claim in the tribunal on 17 May 2019. It was listed for hearing on 27 November 2019.
- It can be seen therefore that the claims were properly made.
The points argued in the tribunal below
- Four days prior to the hearing the lessor sent a large number of documents to the tribunal by email and copied in one of the tenants. One of these documents entitled ‘Respondent submissions in relation to application 1049/19’ provided a detailed response to the tenants’ claim.
- On the lighting claim, the lessor said that the tenants should have dealt with the lighting problem by using the emergency repair process under the RTRAA. It was said that it was a breach of the tenancy agreement not to use that process, and that the tenants had therefore failed to mitigate their loss. Had they followed the correct procedure their loss would be limited to two weeks’ rent.
- It seems also that the lessor’s response was that he reacted quickly to notification of the failure of the lighting and so he was not in breach, and delays in carrying out the repairs were caused by the tenants who interfered with the repair process out of malice.
- For the swimming pool the lessor blamed the tenants for not maintaining water levels and their failure to clean the skimmer box and (seemingly) causing air leaks within the system resulting in early failure of the equipment. The lessor said he was not in breach because he acted reasonably to do the repairs. He sought to counterclaim the sum of $733 for replacement parts.
- For the hot water issue the lessor says this should have been dealt with as an emergency repair, that he was not in breach because he reacted quickly enough to the problem.
- There were other points made in the submission whose impact was unclear. One was that the tenants said they were going to buy the property, another was that the rent had already been reduced for these tenants, another was an allegation that the agent was in breach of fiduciary duty to the tenant. Also that the lessor had agreed to allow the tenants to leave early without penalty. He also said that the tenants made exaggerated claims to the agent.
- It was not in dispute that the tenants reported each problem to the property manager and issued ‘breach notices’ on Form 11 for the lighting and pool issues, although there was no breach notice issued for the hot water system issue.
How the panel resolved the claim
- The Appeal Tribunal has obtained a transcript of the hearing and from that it is possible to see what happened at the hearing. The lessor was on the telephone and one of the tenants was physically present. The panel permitted each side to give their evidence on oath and to present their respective cases, which they did. There was much discussion about the reason why it took so long for the lighting issue to be resolved. The lessor did volunteer that were some issues between himself and one of the electrical firms who could have attended, and explained at length the efforts made to have the issue resolved.
- For the swimming pool, the lessor put his case about the tenant failing to look after it, as was required in the tenancy agreement. This was supported by a pool repairer’s report that a mechanical seal in the pump had failed because it had run dry and that could have been caused by the water level being too low, baskets being clogged, or air leaks in the system. This was denied by the tenant in attendance at the hearing who explained that he knew how to maintain the pool and that he had maintained it properly.
- The lessor addressed the panel with his points about emergency repairs, the rent reduction at the commencement of the tenancy, the fact that the tenants said that they were interested in buying the property and that they were allowed to end the fixed term early without penalty, and he submitted that the repairs were dealt with quickly and so there was no breach.
- Having heard the matter in that way and after deliberating together, the panel then gave its decision and reasons in detail. On the lighting issue, it found that the bathroom lights were not working for a period of 19 days and that other lights also had a problem, and that the eventual cause of this turned out to be two light sensors, and that the tenant contacted the property managers about the issue which was the correct way to handle the matter rather than to treat it as an emergency repair as the lessor was now suggesting. And instead of repairing this quickly, the repair took several days to be done. So the tenants were entitled to compensation for this calculated at half a day’s rent being $82 a day, which over 19 days was $1,558.
- For the pool the panel found that again the tenant raised the issue with the property managers and it took some time to be repaired. The panel was not satisfied that the evidence showed that the tenant had not looked after the pool as the lessor said. The pool had been out of operation for a period of time and $1,400 was reasonable compensation for this. The panel rejected the tenants’ claim for $540 expenses on the basis that this seemed to be expenditure which the tenants would have incurred anyway because they had responsibility to look after the pool.
- For the hot water, the panel found that this also failed for a period of time and a compensation based on a reduction of rent of $480 was reasonable.
- The total award was therefore $3,438.
The grounds of appeal
- There are four grounds of appeal. I’m going to take grounds 1 and 4 first and then grounds 2 and 3.
- Ground 1 is that the tribunal failed to give adequate weight to the fact of the tenant’s breach of the lease, said to be a relevant factor of great importance, causing the reasoning for the decision to be flawed and resulting in an unreasonable decision. The tenant’s breach of the lease referred to here was the tenants’ failure to treat the repairs required to resolve the lighting issue as emergency repairs, thereby contributing to the delay in repairs and possibly being in breach of the duty to mitigate loss. This was fully argued at the hearing and the panel dealt with it in its reasons – disagreeing that the lighting issue was properly treated as an emergency repair. Clearly it was open to the panel to conclude that the lighting issue was not an emergency repair. The difficulty with saying that the panel was wrong about this is that an appeal is not a way to get a second opinion on such issues. It is for the original decision makers to make the decision on such matters, and not for the Appeal Tribunal to do so, provided of course the original decision makers give a fair hearing to the parties, and provided their finding is open to them on the evidence and has legal justification.
- In ground 1 it is also said that the hot water failure was an emergency repair issue and that if the tenants had contacted the nominated repairer instead of the agent about the hot water issue then it would have been repaired 3 days earlier. The difficulty with this point is that although it was submitted by the lessor in the material filed with the tribunal a few days before the hearing that the tenants should have treated the hot water issue as an emergency repair, it was unclear in those submissions what the consequence of this was. It was not said that it would have resulted in an earlier repair. It seemed to be said in those submissions that because the tenants did not treat the hot water issue as an emergency repair the tenants were not entitled to any compensation at all. Quite why that might be the case was unclear.
- At the hearing, the lessor did not explain how the tenants’ alleged failure to treat the hot water issue as an emergency repair could affect their liability under that issue, so this explains why the panel did not refer to this in its reasons. The significance of the point remains obscure, but in any case there is no evidence to support the contention that the repairs would have been done three days earlier if the tenants had contacted the nominated repairer rather than the agent.
- In the circumstances ground 1 of the appeal is bound to fail.
- Ground 4 is that the tribunal failed to give adequate weight to the lessor allowing the tenants to terminate the lease without penalty. The submissions about this attempt to clarify the point being made. It is said that the lack of penalty for an early departure was effectively compensation to the tenants because ‘there was a direct relationship between the events underlying the Applicants claim for a rent reduction and the Respondent agreeing the termination’. The difficulty with this is that this was not presented clearly previously, so the panel cannot be criticised for not picking this up as the point being made. But even if this were shown, it cannot have any legal effect. To have any legal effect it would require agreement between the parties. But there was clearly no agreement about this. This is demonstrated by fact that the tenants made a compensation claim prior to handing over possession, and maintained this claim to a hearing which was after handing over possession.
- Ground 2 is that the tribunal misunderstood the compensation calculations for the lighting fault, and ground 3 is that there was inconsistency in the compensation calculations for the swimming pool fault.
- In ground 2, I do not think the lessor is correct to say that the panel misunderstood the compensation calculations. Having heard the evidence about this lighting issue, it is clear that the panel thought that the correct level of compensation was half the rent over 19 days, which was compensation for the main lighting issue over that period but also because ‘there were other lights that were a problem’, which seems to be a reference to the tenants’ claim that there was an ongoing problem with the lights. The total claim under the lighting issue made by the tenants was originally $2,047 which they sought at the hearing to amend to $3,121.32, but the panel awarded $1,558. I do not think the panel misstated the award, because although it does seem at first sight to be very much at the upper end of compensation awards for this type of problem, a closer study of the effect of the lighting issue on these tenants and their family in their particular personal circumstances, and the fact of continuing problems, demonstrates that the award was not outside the band of possible awards.
- In ground 3, it is said that the swimming pool was only completely out of action for 15 days, and then for the next 11 weeks it could be used during daylight hours, but not at night. Yet the tribunal awarded compensation of $1,400 for the whole 14 weeks at $100 a week, demonstrating an inconsistency. This overlooks the fact however, that the panel found that the pool was completely unusable over the whole 14 weeks. This was based on the tenants’ concern that because of the pool lighting fault which was not fixed all through the second period of 11 weeks they did not wish to use the pool, which evidence the panel accepted. So there was no inconsistency in the panel’s compensation award under this head.
- In these types of appeals, leave of the Appeal Tribunal is needed to bring the appeal. But this will only be given if there the appeal is reasonably arguable and if successful would make a difference to the outcome. Here I have concluded that the grounds of appeal are not reasonably arguable so I do not grant leave to appeal. This means that the appeal fails.
Gould v Mazheiko & Gill  QCATA 10, Justice Daubney, President.
Campbell v Donker  QCATA 6, , Senior Member Oliver.
Section 419(2) of the RTRAA.
This can be seen from the Notice of Unresolved Dispute dated 9 May 2019.
Section 416 of the RTRAA.
Transcript 1-9 and 1-10.
Transcript 1-19 line 2.
Transcript 1-20 to 1-22.
Transcript 1-25 line 9.
Transcript 1-24 line 12.
Transcript 1-13 line 35.
As the tenant said (transcript 1-14 line17): ‘Well there’s an electrical fitting unplugged and just sat on the side of the – can you put your kids in there? I don’t know’.
- Published Case Name:
Thurley v Vokes & Vokes
- Shortened Case Name:
Thurley v Vokes & Vokes
 QCATA 149
15 Dec 2021