Progress Property Pty Ltd t/as Zevesto Property Group v Clifforth
[2021] QCATA 53
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- Progress Property Pty Ltd t/as Zevesto Property Group v Clifforth[2021] QCATA 53
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Progress Property Pty Ltd t/as Zevesto Property Group v Clifforth[2021] QCATA 53
Progress Property Pty Ltd t/as Zevesto Property Group v Clifforth[2021] QCATA 53
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Progress Property Pty Ltd t/as Zevesto Property Group v Clifforth [2021] QCATA 53 |
PARTIES: | progress Property Pty ltd t/as zevesto property group (applicant/appellant) v Soma gurr clifforth (respondent) |
APPLICATION NO/S: | APL201-20 |
ORIGINATING APPLICATION NO/S: | MCDT273-20 Beenleigh |
MATTER TYPE: | Appeals |
DELIVERED ON: | 25 March 2021 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | A/Member Bertelsen |
ORDERS: | Application for leave to appeal refused. |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – tenancy agreement – where tenant sought diminution of rent caused by presence of mould during the course of the tenancy – where an Adjudicator ordered monetary rent relief for loss of amenity – where the agent claimed any loss was statute barred – whether lack of consideration of the agent’s evidence and failure to provide adequate reasons Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 94, s 419 Gould v Mazheiko & Gill [2020] QCATA 10 Grace & Ors v Metrocity Realty & Ors [2012] QCAT 663 Masinello v Parker & Anor [2013] QCATA 325 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented by Shane Booth |
Respondent: | 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]Soma Clifforth leased a residential premises in Mt Warren Park through Zevesto Property Group on a fixed term tenancy starting 12 July 2019 ending 29 June 2020. Rent was $255 per week. Bond was $1,020.
- [2]Sometime after taking possession Ms Clifforth identified what she said was a mould problem in the unit. She has sought a rent reduction on account of reduced amenity for some 39 weeks at $75 per week. On her account the mould was pervasive, affecting all rooms in the unit.
- [3]Photos were produced assertedly confirming ingress of water/moisture through broken or faulty roof tiles on to the upper side ceiling causing it to become mouldy. A photo depicting part removal of the unit ceiling was produced showing mould on the ceiling. Additionally a photo was produced of the unit laundry where mould was present but unrepaired and depicting internal rotted wall, as well as a photo depicting mould growth in the air conditioner.
- [4]An assessment of the mould problem was conducted by Mould Men and a report issued about 12 August 2019. Mould was identified as evident in the areas:
Entrance – cornice
Laundry – under sink/wall
Wall cavity – laundry wall
Ceiling cavity – above entry door
- [5]On 18 September 2019 Ms Clifforth issued a notice to remedy breach – details of breach being “pre existing pervasive mould issue assessed by mould removal company on agent’s behalf has not been remedied”.
- [6]According to Mr Booth representing Zevesto, a work order approving Mould Men’s scope of works was issued on 19 September 2019 followed by an invoice for completed works. Works recommended by Mould Men were undertaken – blinds cleaned, laundry area repaired. The body corporate was notified of repairs necessary to fix the roof leak. Zevesto produced photos taken at a routine inspection on 5 March 2020 which it said confirmed eradication of mould.
- [7]A Mr Amico speaking for Ms Clifforth said Ms Clifforth received assurances from Mr Booth that the mould problem would be resolved otherwise Ms Clifforth would have left earlier. This was in the context of what appeared to be Ms Clifforth’s ongoing and seemingly escalating medical issues – asthma and allergies in particular.
- [8]Time marched on. Ms Clifforth continued to pay rent in full though it was contended she effectively had use of only one (1) room out of three (3) – overall usage only 1/3 of the premises. On 13 February 2020 Ms Clifforth lodged a dispute resolution request about mould remediation and other associated repairs, seeking rent reduction/compensation.
- [9]It appears on 7 April 2020 conciliation took place without success. On 1 May 2020 the RTA issued a notice of unresolved dispute. This was followed by Ms Clifforth’s application filed on 7 May 2020. The application was heard by an Adjudicator who granted loss of amenity for 32 weeks’ rent – August 2019 to March 2020 - $8,160. Loss of amenity was estimated at 20% – that is $1,632 – payable by the respondent agent to Ms Clifforth.
- [10]Zevesto seeks 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.
- [11]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 reasonable argument that there is an error to be corrected.
Grounds of appeal
- [12]In the application for leave to appeal or appeal filed 21 July 2020 Zevesto stated its grounds of appeal thus: “the learned Member failed to apply statutory law by ignoring section 419 of the RTRAA 2008 by not dismissing the claim on grounds that it was the applicant that failed to lodge a claim within six (6) months of becoming aware of the breach”.
- [13]Subsequently in its statement filed in the Tribunal on 31 August 2020 Zevesto appears to increase the number of grounds of appeal to three.
Ground 1 - failure to apply the law s 419 RTRAA 2008 i.e. application not lodged within six (6) months of becoming aware of the breach.
- [14]The application for minor civil dispute at page eight of 17 asks the applicant: what orders do you want the Tribunal to make and what section or sections of the legislation are relied on? Ms Clifforth states, “reduction of rent throughout my stay as a result of breaches of the agreement and lack – and continued loss – of amenities and a facility”, referencing sections 94, 169 and 419 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (the RTRAA legislation).
- [15]Then quantifying her claim on the same page Ms Clifforth states, “rent reduction for 39 weeks $2,925 ($75 PW).”
- [16]On page nine when asked for reasons for seeking orders Ms Clifforth says:
the premises was advertised as a fully air conditioned 3 bedroom unit. But from the very first day I have not been able to use more than a 1/3 of it to any acceptable degree. An unremedied mould problem affects the unit throughout. I have been able to suffer through almost nine (9) months of this unhealthy and deteriorating situation only because I’m on strong medications to control severe episodes of asthma and prevent the onset of pneumonia and other potentially serious and long lasting complications.
- [17]In her statement of evidence attached to her application Ms Clifforth says she wants the Tribunal to award her a reasonable rent reduction for the lack, and continued loss, of amenities from the beginning of her tenancy and up to the 39th week from 12 July 2019 to 1 May 2020.
- [18]In evidence it was stated on behalf of Ms Clifforth that she had to make do with the least troublesome bedroom (of three) since she had been at the unit; that she only used about 1/3 of the place.
- [19]At the time of hearing Ms Clifforth was still in occupation.
- [20]Clearly then Ms Clifforth’s application was about rent decrease pursuant to s 94 of the RTRAA for loss of amenity.
- [21]The leading and authoritative decision on loss of amenity/compensation claims under s 94 and s 419 of the RTRAA is Gould v Mazheiko & Gill,[1] there referring to previous decisions Grace & Ors v Metrocity Realty & Ors[2] and Masinello v Parker & Anor.[3] The Appeal Tribunal concluded that the time limit under s 419 does not apply to claims brought under s 94; that there was nothing in the RTRAA which would justify grafting the time limit from one section onto another. Here the claim was brought during the course of the tenancy as it should be the only time limit being that it be so brought. For these reasons ground 1 fails.
Ground 2 – primarily that inadequate consideration was given to Zevesto’s statement of evidence/submission at hearing
- [22]At hearing the Adjudicator had a considerable volume of material before him and took time to adduce oral evidence from each of the parties. If there was no specific reference by the Adjudicator to invoices for works completed or particular photos for instance that does not mean he did not consider them.
- [23]An assertion of inadequate consideration of material or evidence or inappropriate consideration of facts requires more than a feeling that such was the case. There must be something anomalous, incorrect, misperceived, apparent on the record that leads to the conclusion that it was impossible or at least unreasonable to make the particular finding of fact. Here the Adjudicator took time to fully consider the application before him and make what appears on the record to be a considered and fairly lengthy decision.
- [24]For these reasons, ground 2 fails.
Ground 3 - failure to provide adequate reasons for calculation of compensation sum at hearing
- [25]In his reasons the Adjudicator referred to first notification of the mould issue on 15 August 2019.
- [26]The Adjudicator said there was a mould problem at the premises but it was not huge even though Ms Clifforth did not have full use of the premises. He calculated loss of amenity from August 2019 to March 2020 when Ms Clifforth was invited to leave and when he considered she should have left. That was eight months, that is, 32 weeks at $255 per week which is $8,160. The Adjudicator assessed 20% loss of amenity as applicable, that is $1,632.
- [27]Clearly when imposing a percentage applicable to loss of amenity there is an element of the arbitrary in any monetary figure being arrived at by reference to the totality of material and evidence before the Tribunal. There is no such thing as a formula or schedule; it’s an assessment. Here the loss of amenity as accepted by the Tribunal was substantial enough but not huge set against generally accepted liveability standards. The Adjudicator adopted a conservative approach here because some of the photos were not very clear. An asserted and generally accepted substantial loss of amenity translated on the Adjudicator’s assessment to a 20% reduction.
- [28]That said the Tribunal cannot see that the Adjudicator’s assessment could be categorised as unreasonable or excessive. Even if it is the opinion of the Appeal Tribunal that the sum awarded could have been a little more or less that is not reason alone to set the decision aside. The correct approach is, was it open to the Adjudicator to make the decision he did based on all the material and evidence before him. If the answer is yes, the original decision stands. This ground 3 fails to gain any traction.
- [29]Zevesto has no prospects of success on any of the three grounds of appeal. Leave to appeal must be refused.