Juhar v Carter[2022] QCATA 184

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Brendon Carter, Samantha Rogers, Christopher Hansen and Katelyn O'Neill (collectively, the tenants) were tenants of 14 Columbine Street, Inala (the property). The tenants have been represented before the Queensland Civil and Administrative Tribunal (the tribunal) by Mr Carter. The property is owned by Hossain Juhar (the lessor). The property was the subject of a fixed term residential tenancy agreement between the lessor and the tenants, starting 18 May 2020 and ending 17 May 2021.
2. [2]
   During their tenancy, the property manager (Ray White Forest Lake)^[1] forwarded water bills to the tenants for payment. Water bills were generated quarterly. It appears that the tenants paid the first two quarters in full.  The bills for the 25 November 2020 to 10 March 2021, and 11 March 2021 to 10 June 2021 quarters were unpaid.
3. [3]
   The water bills reflected extremely high levels of water consumption from the start of the tenancy. In April 2021 it was discovered that there was a leak coming from the property’s solar hot water system.
4. [4]
   After their tenancy had ended, the tenants applied to the tribunal, seeking an order that they be compensated for “the overcharged amount for water bills” (water charges).  They also sought orders regarding the reasonable costs of repair to the property that the lessor had sought from them, and an order for the refund of their rental bond.
5. [5]
   The property manager, on behalf of the lessor, filed a counter-application, claiming “fair compensation” for alleged damage caused to the house by the tenants, and reimbursement for unpaid water charges. At the hearing the property manager appeared and represented the lessor.
6. [6]
   In relation to the water charges, the Adjudicator found that reasonable steps had not been taken to mitigate the loss as a result of the leak.^[2] Compensation (a refund of payments made) was awarded in the amount of $1,064.29 under ss 419 and 420 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRAA). In awarding this amount the Adjudicator took account of what was reasonably payable by the tenants for the “unpaid water charges” referred to in the counter-application.
7. [7]
   The Adjudicator dismissed the counter-application concerning repair costs as the works were not carried out and the property had been “re-let at a higher price”. The Adjudicator said that “there is no evidence as to the diminution in capital value of the premises from which an assessment of loss could be carried out”.^[3] Finally, the Adjudicator ordered that the rental bond be refunded.
8. [8]
   The chronology of the matter before the tribunal and appeal tribunal is as follows:

26 July 2021 The tenants file an application for minor civil dispute

30 August 2021 The property manager filed a counter application

1 September 2021 The matter is heard and determined by the tribunal

29 September 2021 The lessor files an application for leave to appeal and appeal

22 December 2021  The lessor files an application to correct a decision

13 January 2022 The lessor files an application for miscellaneous matters

9. [9]
   The application before me is the application for leave to appeal or appeal. The application for miscellaneous matters concerns only the standing of the lessor to appear for himself – which is allowed.  The other application includes information already provided in the application for leave to appeal or appeal and serves no other purpose.

The residential tenancy agreement

10. [10]
    The residential tenancy agreement required the tenants to pay for water supplied to the property (Item 12.2).  Where a lessor and tenant do not agree about the service charge payable by the tenant, in this case the amount payable for water usage, either party may apply to the tribunal for a decision about the amount payable.^[4]  In deciding an amount payable by a tenant for outgoings for a water service charge, the tribunal must have regard to, amongst other things, the number of persons occupying the premises, the quantity of water for which the lessor should reasonably be liable, and anything else the tribunal considers relevant. 
11. [11]
    Clause 17 of the residential tenancy agreement says that the tenant must pay the amount of the charge to the lessor within one month of the lessor giving the tenant copies of the water account. The note to clause 17 says that if there is a dispute about how much water (use charge) the tenant should pay, the lessor or the tenant may attempt to resolve the dispute by conciliation.  In evidence Mr Carter said that “the owner refused any type of mediation including at the guidance of the RTA”.^[5] 

Merits of appeal

12. [12]
    Findings of fact by a tribunal will not usually be disturbed on appeal if the facts inferred by the tribunal, upon which the finding is based, can support its conclusions, and there is evidence capable of supporting any inferences underlining it.^[6]
13. [13]
    The Adjudicator made findings of fact which I will refer to in the reasons that follow.

The ‘water leak’ issue

14. [14]
    The lessor contends that: the water leak was an “isolated incident” that was fixed promptly; that the leak could not have been present since the tenants moved into the property; that the tenants were “happy” with the water bills; and that several leak tests were performed that did not demonstrate that any leak was occurring.
15. [15]
    In the hearing, the Adjudicator concluded that the leak was not an “isolated” incident as the lessor now contends.
16. [16]
    Attached to the lessor’s counter-application, which was before the Adjudicator, is a copy of the 25 November 2020 to 10 March 2021 quarterly water bill.  The total charges for that quarter were $1,271.54.  The usage was 283 kilolitres, or an average of 2670 litres per day. If, as it appears there were, as many as six people occupying the property, the meter reading would suggest usage of around 450 litres per day per person.
17. [17]
    The transcript discloses that at the hearing Mr Carter provided a spreadsheet with recorded figures for water usage taken from meter readings before and after the leak was repaired, and by reference to billed usage for earlier periods. The Adjudicator calculated that usage declined by approximately 75% after the leak was repaired.
18. [18]
    The Adjudicator found that the lessor had failed to ensure that the premises were in good repair at the time of the tenancy commencing, as was his obligation.^[7] Further, the Adjudicator held that the lessor had failed to take adequate steps to mitigate the loss caused by the faulty plumbing on the property. Despite leak tests conducted by the tenants at the request of the lessor through his property manager, which were inconclusive, the Adjudicator decided that the failure of the lessor to further investigate this issue meant that they had failed to take reasonable steps to address the problem.
19. [19]
    There is no evidence that the tenants were “happy” with the water bills as the lessor asserts. Indeed, Mr Carter said in the hearing:

While I unfortunately do not have email proof, each time a quarterly water bill would come through, I did phone [the property manager] and talk to [them] about how I had concerns about how I had concerns about how [the water bills] could be so high when we only had one extra person living in the property and our previous water bills were a-quarter of what they are now.

20. [20]
    As noted there were four water bills sent to the tenants.  The tenants paid the full amount of $1,989 in satisfaction of the first two bills. The third and fourth bills in the total amount of $1852.78 were not paid by the tenants.
21. [21]
    The tenants originally claimed an amount of $2917 which they say “are for overcharge if we had paid the full amount”. How this figure was calculated is not apparent.  However, it was accepted by the Adjudicator as the figure from which to deduct the amount of the unpaid bills ($1852.78) to determine that the tenants were entitled to a refund of the difference being $1064.29. 
22. [22]
    Based on that exercise, the Adjudicator accepted that the tenants were responsible for total water charges of approximately $924, or $231 per quarterly water bill.  The final amount of water usage charges that the Adjudicator accepted is approximately 25% of the amount billed. That is consistent with the estimated average usage following the repair undertaken to the leak and is therefore not unreasonable. The amount awarded is reasonable for the purposes of s 420(1)(e) of the RTRAA.
23. [23]
    In this matter for an appeal to be allowed, the lessor must demonstrate that the Adjudicator made a material error of fact. It was open to the Adjudicator to make the findings that were made. On the evidence before me, I can see no error of fact or law in the Adjudicator’s findings.

The ‘property damage’ issue

24. [24]
    On the second issue, the ‘property damage’ issue, the lessor contends that the tenants, despite several warnings from the property manager, caused in excess of $7000 damage to the property.
25. [25]
    During the hearing, the property manager admitted that, despite receiving quotes for repairs, no such repairs had actually been undertaken.^[8] Quotes for repairs should not be taken as evidence of damage where there is no acceptable explanation as to why the repairs have not been undertaken, or they are not attached to sworn statements and the authors of those statements are not made available for cross-examination.^[9] As the Adjudicator observed in the hearing, a loss must be established.^[10] Quotes for repairs that may or may not be undertaken do not establish a capital loss in the value of the property.
26. [26]
    The lessor states in this application that he had incurred thousands of dollars in costs of repair. In support of this submission, he filed a number of receipts for work undertaken. The receipts are dated prior to the hearing. The lessor had the opportunity to present that material at the hearing and the tenants would have had the opportunity to dispute, question or challenge that material.  
27. [27]
    The lessor also makes claims for damage to the property which were not the subject of evidence at the hearing, such as damage to the lawn allegedly caused by cars being parked there.
28. [28]
    An appeal is not an opportunity to bring fresh evidence or make new claims. As this tribunal has said:

An application for leave to appeal is not an occasion for a retrial de novo, or for “second guessing” of questions of fact or credit that are the province of the primary decision-maker. Indeed, the very requirement to obtain leave is to preclude attempts to retry cases on the merits, or to introduce evidence or arguments that might have been led in the first place, but were not. On such an application the question is whether there is a reasonably arguable case of error which, if not corrected, will cause substantial injustice to the applicant. It is not nearly enough for an applicant to express disappointment, or to entertain a subjective feeling that justice has not been done. Where reasonable minds may differ, a decision cannot properly be called erroneous, simply because one conclusion has been preferred to another possible view.^[11] (citations omitted)

29. [29]
    There does not appear to be a reasonable explanation as to why the evidence and claims that the lessor has presented in this application were not made in the hearing. The lessor claims that the property manager failed to present “some evidence” in the hearing. There was nothing preventing the lessor from attending and participating in, or making submissions at, the hearing.  
30. [30]
    I see no reason to disturb the findings of the Adjudicator with respect to this matter. The Adjudicator noted that, at the time of the hearing, no repairs had been undertaken, the property had been relet at a higher rent rate than that paid by the tenants, and there was insufficient evidence by which to calculate a decrease in capital value to the property due to the actions of the tenants. It was open on the evidence before the Adjudicator to make such findings.

Other grounds of appeal

31. [31]
    Seemingly in support of his appeal for both issues, the lessor states that he has suffered financial hardship since the tenants moved into his property, stating that: the property was vacant for a period of two months after the tenants left the property; the lessor has been without a job for over a year, meaning rental income is his only source of income; and he has continued to have to pay incidentals such as council rates and mortgage repayments during this time.
32. [32]
    While the lessor may be suffering financial hardship, that is not a reason to disturb the findings of the Adjudicator. A rental property is not a risk-free investment, and costs incurred with maintaining it do not give rise to a right to penalise tenants. I give no weight to this submission.

Conclusion

33. [33]
    I am unable to find any error of fact or law in the decision of the Adjudicator.
34. [34]
    The application for leave to appeal and appeal is dismissed.

Orders

The application for leave to appeal and appeal is dismissed