Springfield Raine and Horne v Schelberg
[2021] QCATA 27
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- Springfield Raine and Horne v Schelberg[2021] QCATA 27
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Springfield Raine and Horne v Schelberg[2021] QCATA 27
Springfield Raine and Horne v Schelberg[2021] QCATA 27
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Springfield Raine and Horne v Schelberg [2021] QCATA 27 |
PARTIES: | SPRINGFIELD RAINE AND HORNE |
(applicant/appellant) | |
v | |
SARAH SCHELBERG AND STEPHEN SCHELBERG | |
(respondent) | |
APPLICATION NO/S: | APL087-20 |
ORIGINATING APPLICATION NO/S: | MCDT30-20 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 2 March 2021 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Richard Oliver |
ORDERS: | Application for leave to appeal is refused |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where tenant had complaints of mould in rented house – where mould originated in the air conditioning system – where applicant took steps to remedy the mould problem – where ongoing issues – where the applicant offered to terminate the tenancy – where the respondents purported to accept the offer and vacated the premises – whether the tenancy agreement terminated by agreement acceptance – whether the respondents claim for compensation recoverable in the circumstances – whether the cost of removalist reasonable. Queensland Civil and Administrative Tribunal Act section 142(3)(a)(i) Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd.R. 404. Terera & Anor v Clifford [2017] QCA 181. Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22. Bradlyn Nominees Pty Ltd v Saikowski [2012] QCATA 39. |
APPEARANCES & REPRESENTATION: | 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]The Schelbergs entered into a residential tenancy agreement with Raine & Horne to rent premises at Springfield from 16 September 2019 until 14 September 2020. Immediately on taking up possession, the Schelbergs noticed a damp smell in the house from what appeared to be mould on air conditioning vents on the upper lower and the lower level. The house had ducted air conditioning. This was reported to Raine & Horne who undertook investigations and engaged an electrician who changed the vents on the upstairs level.
- [2]There were continuing problems with the air conditioning and complaints about the mould. Specks of mould-like material would fly out of the vents and land on benches. This was an entirely unsatisfactory situation for the Schelbergs with two small children. There was also worn and deteriorating carpet particularly on the staircase. The mould issues were ongoing despite Raine & Horne’s attempt to address the Schelbergs’ concerns. All of this culminated in an email exchange between the Schelbergs and Raine & Horne. In an email from Raine & Horne, the Schelbergs were asked:
Good Afternoon, Sarah. We have been in communication with the air conditioner people to receive advice on where to go in regards to your last email. I recommend that you contact the RTA again in relation to the latest concerns. Is an option for you to mutually end the lease and vacate the property, as we are trying to get solutions to the issues and we have more issues unfolding.
- [3]There was no immediate response but about 7 days later Mrs Schelberg wrote:
Hi Leonie. Yes, we agree to mutually end the lease and vacate on the basis that the home poses too many ongoing serious health risks as I have documented with your office and which the owner refuses to address or further investigate. We will vacate the property today as per Notice of Intention to Leave issued to you last week.
- [4]There was no response to Mrs Schelberg’s email, nor by telephone or personal attendance at the premises by Raine & Horne. The Schelbergs duly vacated the property. Fortunately, the property was relet and a new tenancy agreement commenced on 6 January 2020.
- [5]In an application in the Minor Civil Disputes jurisdiction, Raine & Horne sought to recover damages for what they contend to be a breach of the tenancy agreement by the Schelbergs for the rent payable between 25 November 2019 and 5 January 2020 inclusive. The Schelbergs filed a counter application seeking compensation for costs of having to move out of the house because of its unliveable condition due to mould. They contend, in respect of Raine & Horne’s claim, that no monies are payable because the tenancy agreement came to an end by mutual agreement.
- [6]The matter came on for hearing before a Tribunal Member on 19 February 2020. The representatives for Raine & Horne put their case and contended that the email exchange did not amount to a mutual agreement to terminate the lease. It was merely a query or option as to whether or not that would be a suitable outcome for the Schelbergs. It was not an ‘offer’ to terminate the tenancy agreement capable of acceptance. By contrast, the Schelbergs took it to be an offer which they accepted, moved out and therefore were not in breach of the residential tenancy agreement was terminated by agreement.
- [7]As for the mould, there was evidence from both the representatives from Raine & Horne and the Schelbergs as to the existence of the mould. Despite attempts taken to try and address the problem, replacement of vents were installed upstairs but not downstairs, and also evidence about the condition of the carpet.
- [8]Having heard from both parties, the learned Member made a decision that the residential tenancy agreement was mutually terminated. The learned Member as she was entitled to do, and having considered further evidence from the parties, made a finding that there was a mutual agreement to terminate the residential tenancy agreement.
- [9]In respect of the compensation claim brought by the tenants, the learned Member allowed $1,500 out of an $1,800 claim, for the removal expenses incurred by the Schelbergs in having to prematurely move from the property to another property. She rightfully recognised that removal costs may have been incurred at the termination of the lease in any event, but given the uncertainty as to whether the tenancy would have continued in September 2020, considered it just and equitable to compensate the Schelbergs for this cost.
- [10]From that decision Raine & Horne has filed an application for leave to appeal or appeal. The appeal is brought under s.142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 which provides that in respect of a decision in a proceeding for minor civil dispute an appeal may be made only if the party has obtained leave of the Tribunal. Leave to appeal will usually only be granted where there is a reasonable argument the decision was attended by error, or that an appeal is necessary to correct the substantial injustice caused by the error.[1] The appeal tribunal will not interfere with findings of fact which were open on the evidence before the decision maker.[2] An application for leave to appeal is not simply an opportunity to re-activate the arguments made therein below in the hope of obtaining a different outcome.[3]
- [11]In respect of the termination of the tenancy, little needs to be said. The learned Member relied on the email exchange which “This seems to me one of the clearest cases in an agreement to terminate the lease as I have seen”.[4] Raine & Horne’s position is that it was not actually an offer to terminate the lease, but a suggestion of a way that the maintenance issue might be resolved.
- [12]The critical point here is though that even if Raine & Horne is correct in its interpretation of the original suggestion, as soon as they received the Schelbergs’ response that they accepted it and were going to vacate that day, their rent being paid up to date, Raine & Horne took no steps to clarify what was intended by the email. Although silence of itself is not generally taken to be an acceptance of an offer, but here the offer came from Raine & Horne, there was a positive response from the Schelbergs, and if the Schelbergs were mistaken about the intent of the offer, it was incumbent on Raine & Horne to correct any misconception before the Schelbergs took any steps adverse to their interests. The silence was on the part of the offeror, not the offeree.
- [13]With respect to the maintenance issues, that is the mould and the carpet, the learned Member had an opportunity to hear evidence from both parties about these issues. Importantly, there was a recognition by Raine & Horne that mould was in the air conditioning system, photographs depicted specks of mould on benches and despite Raine & Horne’s best efforts, they could not properly address it. The compensation claim was not for any personal injury (save for the carpet issue) that the premises were unhabitable, but simply the costs of having to move sooner rather than later. The learned Member gave cogent reasons as to why this cost should be recovered and once again, that conclusion was open on the evidence put before the learned Member and clearly it was to ensure the health and wellbeing of the children and the family as a whole by moving to safer premises.
- [14]An application has been brought by the Schelbergs to lead further evidence in the appeal. Fresh evidence can be admitted if it was not available at the time, or alternatively, would have an impact on the result of the case.[5] Although, given the conclusions that the Appeal Tribunal has come to, it is unnecessary to consider this application.
- [15]For the reasons stated, leave to appeal is refused.