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  4. Khromeenkova v PRD Robina Nationwide - [2021] QCATA 35

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Khromeenkova v PRD Robina Nationwide[2021] QCATA 35

Khromeenkova v PRD Robina Nationwide[2021] QCATA 35

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Khromeenkova v PRD Robina Nationwide & Anor [2021] QCATA 35

PARTIES:

yulia khromeenkova t/as north gold coast pty ltd

(applicant/appellant)

v

prd robina nationwide

(first respondent)

CHATHAM LODGE PTY LTD

(second respondent)

APPLICATION NO/S:

APL175-20

ORIGINATING

APPLICATION NO/S:

MCDT313-20 Southport

MATTER TYPE:

Appeals

DELIVERED ON:

16 March 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

Application for leave to appeal refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where a tenant applied for compensation for claimed lessor’s breaches of maintenance obligations – where the Tribunal found the claim for compensation was out of time – where the tenant pursued the same claims but sought relief variously by way of rent decrease and monetary award through the Tribunal’s general power to make orders to resolve disputes – where the alternative claims were also refused as outside the scope of the provisions  - where the tenant sought leave to appeal

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 94, s 185, s 419, s 325, s 420

Avondale Motors (Parts) Pty Ltd v Federal Commissioner of Taxation [1971] HCA 17

Bourke v Kenjad Rentals [2019] QCATA 81

Gould v Mazheiko & Gill [2020] QCATA 10

APPEARANCES &

REPRESENTATION:

 

Applicant:

Self-represented

Respondents:

Self-represented by J Johnston

 

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. [1]
    Ms Khromeenkova, through a company North Gold Coast Pty Ltd, leased a residential unit at the Gold Coast through PRD Robina Nationwide as agents for the lessor, Chatham Lodge Pty Ltd.
  2. [2]
    Though no copy of the residential tenancy agreement was filed below, it appears the term is two years fixed from 1 June 2019 and ending 28 May 2021. She pays rent of $1,403.85 per week. Initially she paid six months’ rent in advance and she paid a bond of $5,600.
  3. [3]
    Ms Khromeenkova discovered many outstanding maintenance issues with the property when she first took possession. She reported them to PRD. PRD engaged contractors to effect repairs and perform maintenance addressing the complaints.
  4. [4]
    Ms Khromeenkova was dissatisfied with the response to her complaints and she filed a minor civil dispute residential tenancy application in the Tribunal against the agent and the lessor claiming compensation and rent reduction “above $10,000 to $25,000”.
  5. [5]
    The matter was heard by an Adjudicator on 17 June 2020 who dismissed Ms Khromeenkova’s claim and also a counter-application filed by the respondents.
  1. [6]
    Ms Khromeenkova seeks leave to appeal that decision.
  2. [7]
    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.[1] 
  3. [8]
    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.[2] 
  1. [9]
    In her application for leave to appeal Ms Khromeenkova identified three errors she says were made by the Adjudicator in the hearing below.
  2. [10]
    First that the Adjudicator erred in finding her complaints were out of time under s 419 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘RTRAA’).
  3. [11]
    Then she says the Adjudicator erred in refusing her relief for those same items of complaint under s 94 RTRAA.
  4. [12]
    Similarly she says the Adjudicator erred in not granting her relief alternatively pursuant to s 429 RTRAA.

Was her claim for compensation under s 419 RTRAA  out of time?

  1. [13]
    By s 419 RTRAA:

Applications about breach of agreements

  1. This section applies if any of the following claim there has been a breach of a term of a residential tenancy agreement or a rooming accommodation agreement—
  1. a lessor or tenant under the residential tenancy agreement;
  2. a provider or resident under the rooming accommodation agreement.
  1. The lessor or tenant, or provider or resident, may apply to a tribunal for an order about the breach.
  2. The application must be made within 6 months after the lessor or tenant, or provider or resident, becomes aware of the breach.
  1. [14]
    The Adjudicator found that Ms Khromeenkova’s complaints were out of time on the basis that more than six months had elapsed after she became aware of the breaches before she took action to recover compensation for the breaches.
  2. [15]
    There were a number of complaints about various things:
    1. (a)
      a leaking ceiling in the second bedroom ensuite;
    2. (b)
      a pool which leaked;
    3. (c)
      a faulty dishwasher;
    4. (d)
      a faulty cooktop;
    5. (e)
      a rangehood in the kitchen which was not connected and installed properly;
    6. (f)
      constant power cuts;
    7. (g)
      a leak in the basement carpark which caused damage to her car; and
    8. (h)
      air-conditioning which did not work in bedrooms 2 and 3.[3]
  3. [16]
    Ms Khromeenkova claims the six month time limit under s 419(3) to commence proceedings should have been calculated from the date of issue of any Form 11 Notice to Remedy Breach issued for the various breaches, not the date she became aware of the breaches or first made complaint about them to the agents.
  4. [17]
    In her written submissions provided to the Adjudicator Ms Khromeenkova said the problems had been noticed within “only few (sic) days into our occupancy.”[4]
  5. [18]
    The Adjudicator said:

Firstly, the pool. It’s stated leaked (sic) – firstly, reported on entry condition. In relation to the cooktop, 13th of the 6th 2019, in relation to the aircon, firstly reported 14th of the 6th ’19. There’s further reference to hedges, dates not supplied. Reference to the leak. But, again, it appears in reference to the car damage and issues regarding bullying, but I am not sure – Ms Khromeenkova …, I’m not sure – well, I am sure the tribunal does not have jurisdiction for issues that arose in excess of six months before the application was lodged.

I understand why you have come to the tribunal, based upon what you’ve put, but I don’t know that there’s any order that I have that the tribunal has any power to make, given the timeframes that are contemplated in your application.[5]

…

So, when you became aware of the leak, I note that you said you issued form 11 breach notices, but an application to the tribunal – you’ve only got a six month window from becoming aware, so if there’s a leak, from the moment you become aware of that, six months. From the moment you become aware that the aircon is not working, you have got six months. I know that may seem unfair, but I don’t have the power to override that timeframe. I’m sorry. I’m going to have to dismiss - - -[6]

  1. [19]
    Ms Khromeenkova submits that there is no breach of a residential tenancy agreement until the lessor refuses to remedy an identified maintenance issue. Whilst the lessor takes steps to remedy an issue the lessor is not in breach. The lessor falls into breach only when the lessor can’t fix or won’t fix the problem.
  2. [20]
    By s 185 RTRAA:

Lessor’s obligations generally

…

  1. At the start of the tenancy, the lessor must ensure—

…

  1. the premises and inclusions are in good repair;

…

  1. While the tenancy continues, the lessor—

…

  1. must maintain the premises and inclusions in good repair;

…

  1. [21]
    Section 185 provides that the lessor will be in breach of their maintenance obligations from the start of the tenancy if the premises and inclusions are not in good repair. The lessor also commits a breach during the tenancy if the premises and inclusions are not maintained in good repair.
  2. [22]
    The breach occurs independent of issue of any Form 11 identifying ill repair.
  3. [23]
    What the Form 11 does is make timely repair of the essence. The Form 11 gives notice that the breach of the tenancy agreement which has occurred because the premises are not in good repair will permit the tenant to terminate the tenancy agreement if the premises are not made good.
  4. [24]
    The requirements for a Form 11 Notice to Remedy Breach are provided for in s 325 of the RTRAA. Besides requiring the form to be signed it requires particulars of “the breach” and it must state the date by which “the breach” must be remedied. It is clear that the provision contemplates the breach as a precursor to issue of the Form 11.
  5. [25]
    The Adjudicator was not in error in his interpretation of s 419. There is no error by him here to be corrected.

Was there an alternative claim available under s 94 RTRAA ?

  1. [26]
    Ms Khromeenkova says she was entitled to claim under s 94 in respect of the complaints about breaches. In her application for leave to appeal Ms Khromeenkova refers to s 94(2)(b), but at the hearing below she told the Adjudicator her claim was based on s 94(2)(a).[7]
  2. [27]
    Section 94 provides:

Rent decreases

  1. This section applies if the premises—
  1. 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
  2. no longer may be used lawfully as a residence; or
  3. are appropriated or acquired compulsorily by an authority.
  1. This section also applies if—
  1. 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
  2. the amenity or standard of the premises decreases substantially other than because of malicious damage caused by the tenant.
  1. [28]
    The Adjudicator found no claim based on breach of the residential tenancy agreement by the lessor could be pursued as a claim for rent decrease under s 94. That sort of claim was limited to a claim under s 419 RTRAA.
  2. [29]
    Ms Khromeenkova said that the issues about maintenance amounted to services or facilities or goods provided under the agreement that were no longer available.
  3. [30]
    “Goods” are defined under the RTRAA  to include animals, plants, money, documents and anything else of value.[8] Clearly goods is intended to cover moveable chattels rather than fixtures such as air-conditioners, pools or cooktops.
  4. [31]
    “Facilities” is not defined other than for rooming accommodation circumstances  where it includes furniture and equipment. Section 94 applies to “premises” however, and by s 22 RTRAA  a reference to premises, unless the contrary intention appears, is a reference to residential premises under a residential tenancy agreement – not rooming accommodation.
  5. [32]
    “Services” is not defined but “service charge” is. By s 164 RTRAA  a service charge is a charge payable by the owner or occupier for electricity, gas or water supplied to the premises or another service or facility prescribed under a regulation supplied to or used at the premises. The expression “services” is therefore intended to be a reference to broad basic utilities commonly supplied to homes, such as gas or water or electricity or sewerage.
  6. [33]
    A lessor’s failure to maintain premises in good repair does not readily fall within the scope or meaning of the expression services, facilities or goods provided to the tenant under the agreement but no longer available or withdrawn.
  7. [34]
    The words used in legislative provisions must be read in context.[9]
  8. [35]
    In Bourke v Kenjad Rentals[10] Carmody J considered an appeal brought by an appellant tenant who claimed variously under s 419, s 429 and finally s 94 of the RTRAA  and his Honour had this to say:

[15] The modern approach to working out which of two (or more) rival constructions of a statute should be preferred was recently summarised by Kiefel CJ, Nettle and Gordon JJ in Sztal v Minister for Immigration and Border Protection:

9 The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if [its] ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

[16] In my opinion, consideration of the statutory text, purpose and context of the RTRA Act lead to the conclusion that:

…

- the monetary compensatory regime in s 420 RTRA Act provides a legal remedy for non-performance or breach of tenancy obligations regardless of enjoyment loss;

- 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;

…

- on the preferred construction the rent relief discretion in s 94(3) RTRA Act does not arise at all where the tenant’s application (however expressed) is really for an order about a breach under s 419(2) RTRA Act or to resolve a general dispute about a tenancy related agreement under s 429(1) RTRA Act;

- failure to apply for an order under s 419(2) RTRA Act within six (6) months is deemed to waive or forgive past lessor breaches;

- a s 94(4) RTRA Act application, therefore, is not a valid alternative to a s 419(2) RTRA Act claim for breach-based compensation or as an appropriate order to resolve a s 429 RTRA Act general tenancy dispute;

- alternatively, s 419(3) RTRA Act applies to prevent the tribunal from making a rent reduction order for breach relatable s 94(2) RTRA Act events and precludes amendment of an application to add a claim for s 94(3) RTRA Act relief more than six (6) months after the tenant became aware of the underlying breach.

  1. [36]
    Bourke v Kenjad Rentals was accepted as correct law by Daubney J in Gould v Mazheiko & Gill [2020] QCATA 10.
  2. [37]
    I might add in respect of context, s 94 is to be found in Chapter 2, Part 2, Division 1 of the RTRAA. Chapter 2 concerns residential tenancy agreements and rooming accommodation agreements. Part 2 concerns rent and Division 1 more specifically rent concerning residential tenancy agreements.
  3. [38]
    By contrast s 419 is to be found in Chapter 6, Part 2 Division 3 RTRAA. Chapter 6 is entitled dispute resolution. Part 2 is headed application to tribunals and Division 3, general powers of tribunals. Section 419(1) states that s 419 applies if there is a claim there has been a breach of a term of a residential tenancy agreement or rooming accommodation agreement.
  4. [39]
    Given Ms Khromeenkova’s claim was about breach of the lessor’s maintenance obligations, her only claim for that was pursuant to s 419 RTRAA. She had no claim available under s 94.
  5. [40]
    There was no error made by the Adjudicator in refusing the claim based on s 94.

Was there a claim available under s 429 RTRAA ?

  1. [41]
    Section 429 provides:

General disputes between lessors and tenants or providers and residents

  1. If there is a dispute between the lessor and tenant, or provider and resident, about an agreement, either party may apply to a tribunal for an order, and the tribunal may make any order it considers appropriate, to resolve the dispute.
  2. An application under subsection (1) may be made by a cotenant.
  1. [42]
    That was also addressed in Bourke v Kenjad Rentals and answered in the negative.
  2. [43]
    Again I might add to the observations in Bourke v Kenjad Rentals the following. Section 419 is a provision which addresses in detail the circumstances where a claim can or cannot be brought for breach of the terms of the residential tenancy agreement. Section 429 is different. It is a general catch-all provision. It is not intended to override those special provisions that the RTRAA has addressed with detail and particularity.
  3. [44]
    The general words of s 429 are to be read down so as not to detract from the specific provisions of s 419 and s 420.
  4. [45]
    Ms Khromeenkova had no alternative claim to pursue under s 429 where she was disqualified from pursuing the same claim by virtue of the time bar set by s 419.
  5. [46]
    There was no error by the Adjudicator in his reasons for decision. Leave to appeal must be refused.

Footnotes

[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i).

[2]Pickering v McArthur [2005] QCA 294.

[3]Submissions (187 pages) filed by email 11 May 2020, [5].

[4]Ibid [4].

[5]Transcript 1-3 Lines 1-11.

[6]Transcript 1-3 Lines 37-42.

[7]Transcript 1-5 Lines 15-17.

[8]Schedule 2 RTRAA.

[9]Avondale Motors (Parts) Pty Ltd v Federal Commissioner of Taxation [1971] HCA 17, [13].

[10][2019] QCATA 81.

Close

Editorial Notes

  • Published Case Name:

    Khromeenkova v PRD Robina Nationwide & Anor

  • Shortened Case Name:

    Khromeenkova v PRD Robina Nationwide

  • MNC:

    [2021] QCATA 35

  • Court:

    QCATA

  • Judge(s):

    Member Howe

  • Date:

    16 Mar 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Avondale Motors (Parts) Pty Ltd v Federal Commissioner of Taxation [1971] HCA 17
2 citations
Jump To
Cite 1 - [1971] HCA 17
Cite 2 - [1971] HCA 17
Bourke v Kenjad Rentals [2019] QCATA 81
2 citations
Jump To
Cite 1 - [2019] QCATA 81
Cite 2 - [2019] QCATA 81
Gould v Mazheiko & Gill [2020] QCATA 10
2 citations
Jump To
Cite 1 - [2020] QCATA 10
Cite 2 - [2020] QCATA 10
Pickering v McArthur [2005] QCA 294
1 citation
Jump To
Cite 1 - [2005] QCA 294

Cases Citing

Case NameFull CitationFrequency
Capital & Harvest Pty Ltd v Bae [2023] QCATA 942 citations
Dearlove v Wavar Pty Ltd [2024] QCATA 832 citations
Jackson v ManageMe Property Management Solutions Pty Ltd [2024] QCAT 181 citation
Roberts v McGrath Estate Agents Springfield [2021] QCAT 4272 citations
1

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