Hayes v Twomey Schriber Property Group
[2022] QCATA 32
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- Hayes v Twomey Schriber Property Group[2022] QCATA 32
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Hayes v Twomey Schriber Property Group[2022] QCATA 32
Hayes v Twomey Schriber Property Group[2022] QCATA 32
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Hayes v Twomey Schriber Property Group [2022] QCATA 32 |
PARTIES: | frederick geoffrey hayes (applicant/appellant) v twomey schriber property group (respondent) |
APPLICATION NO/S: | APL034-21 |
ORIGINATING APPLICATION NO/S: | MCDT346/20 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 24 March 2022 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member D J McGill SC |
ORDERS: | Application for leave to appeal from the decision of the Tribunal of 1 February 2021 refused. |
CATCHWORDS: | LANDLORD AND TENANT – RIGHTS AND LIABILITIES APART FROM COVENANT – OTHER MATTERS – residential tenancy – premises in need of repair – tenants had to move out during repairs – whether obligation on lessor to provide reasonable alternative accommodation LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – OBLIGATIONS, PROHIBITED MATTERS AND PROTECTION FOR LESSEE – QUIET ENJOYMENT – premises in need of repair – tenants had to move out during repairs – whether obligation on lessor to provide reasonable alternative accommodation – whether tenants have right to damages Residential Tenancies and Rooming Accommodation Act 2009 (Qld) s 183, s 185(3)(b), s 192(1)(b) Austin v Bonney [1999] 1 Qd R 114 Campbell v Queensland Building and Construction Commission [2021] QCATA 34 Craig v Mark Kelada Auto Sellers [2016] QCATA 48 Crime and Corruption Commission v Lee [2019] QCATA 38 Gration v C Gillan Investments Pty Ltd [2005] 2 Qd R 267 |
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 appellant and his wife were tenants of a residential unit in Cairns, and had been for over ten years. In March 2020 the unit was adversely affected by an escape of water, apparently from the unit above, and in need of repair. The respondent agent for the owner organised contractors to do the repairs, and they required possession of the unit for some days while the work was carried out. The respondent offered to arrange alternative accommodation at a similar cost to that of the rented unit which would be made available on the basis of the tenants continuing to pay their usual rent, or to allow them to stop paying rent while out of the unit and arrange their own accommodation, or to agree to a termination of the tenancy.
- [2]The alternative accommodation which the respondent offered was at premises on the outskirts of Cairns. The appellant and his wife are getting on, and do not have a car. They ride bicycles, and staying on the outskirts of Cairns was not convenient for them, for attending medical appointments, visiting friends and the like. They moved instead to short term accommodation about half a kilometre away from the premises, which was more expensive than their usual rent. The present claim was for the cost of that accommodation. After a hearing on 11 January 2021 a Member[1] on 1 February 2021 ordered the respondent to refund the rent paid by them for the period they were out of possession of the unit. The appellant seeks to change that decision, and to recover instead the cost of the alternative accommodation.
- [3]Because this matter was a minor civil dispute, leave is required to appeal to the Appeal Tribunal.[2] As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage.[3] In deciding whether grounds for leave to appeal have been shown, it is relevant to consider that the proceeding was a minor civil dispute, and the obligation on the Tribunal was to make orders it considered to be fair and equitable to the parties to the proceeding in order to resolve the dispute: the QCAT Act s 13(1). The Tribunal was also required to comply with the QCAT Act s 28 and s 29. An Appeal Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the finding, and it is not contrary to compelling inferences.[4]
Decision of the Member
- [4]The Member said that there was no allegation that the water damage occurred through the fault of the owner, so there had been no breach by the landlord of any obligation giving rise to a claim for damages. The landlord had an obligation to effect repairs, which it was carrying out, but that did not give an entitlement to damages. The only obligation on the landlord was not to charge rent during the period the tenants were not in occupation. The rent during that period had been paid, and credited to the tenants as rent in advance; but the respondent did not oppose an order that it be refunded, and that was the order made. The amount was said to have been agreed during the hearing.
- [5]The Member accepted that alternative accommodation in the same area will inevitably cost more because of the short term nature of that accommodation. The Member noted that the tenants were reliant on bicycles for transport, and that accommodation in the local area suited them better, but did not make any finding about whether the accommodation offered by the respondent was reasonable. This was because he considered that the tenants only remedy was a refund of the rent, and referred to s 94.[5]
Grounds of Appeal
- [6]The ground of appeal identified in the Application for leave to appeal is that the decision of the Member was based on dishonest testimony on behalf of the respondent, specifically a passage in an affidavit on behalf of the respondent that the respondent did not know that the tenants did not have a motor vehicle. In submissions in support of the appeal, the appellant also complained that when he raised the issue of the false statement in the affidavit at the hearing, the Member told him to stop, and would not listen to him, or investigate the matter.
- [7]The appellant submitted that they had been tenants for years, and that the premises had been inspected many times over that period (four times a year) and photographed routinely, and accordingly the respondent must have known that there was never a car in the garage, but there were always at least two bikes. As well, the agent (and the owner) had been told that they did not own a car. Hence the statement that the respondent did not know that they did not have a car was not only false, but must have been known to have been false. The Member had failed, indeed refused, to investigate this at the hearing, and that was an injustice to the appellant.
Consideration
- [8]It is clear enough from the transcript of the hearing that the Member did not investigate the allegation of a false statement in the respondent’s affidavit because he did not consider that it was relevant to the matter he had to decide. The appellant’s case was essentially that the respondent had failed to provide reasonable alternative accommodation during the period when he would have to move out of the premises, because the alternative accommodation offered was not suitable for them, because of its location and the absence of a car. If there were an obligation on the respondent to provide reasonable alternative accommodation, whether the accommodation offered was reasonable would be a matter for objective assessment, and would not depend on the knowledge at some point in time of the absence of access to a car. What the respondent knew and when it was known would become relevant only if the obligation on the respondent were to act reasonably in the provision of alternative accommodation.
- [9]The difficulty for the Member however was the first proposition, the existence of some obligation on the respondent to provide alternative accommodation. If there were none, whether the alternative obligation was reasonable, or whether the respondent had acted reasonably, became irrelevant, and the Member was not able to identify any such obligation. Neither can I.
- [10]At common law there was no obligation on a lessor to do repairs, or as to the condition of the premises, except in the case of a tenancy of furnished premises, where there was an implied covenant that it was fit for habitation when it was let.[6] It necessarily follows that there was no obligation at common law on the lessor to provide alternative accommodation, of whatever quality, if the premises were in need of repair which would render them temporarily uninhabitable. Accordingly, any such obligation must be found in some statute, relevant the Residential Tenancies and Rooming Accommodation Act 2009 (Qld). That Act does impose an obligation on a lessor to repair tenanted premises,[7] except for a small category of repairs where the obligation is placed on the tenant, not relevant to this case.
- [11]The Act also makes provision for the lessor, and the lessor’s agents (such as tradespeople) to obtain access to the premises for the purposes of undertaking the repairs.[8] It does not however contemplate that the lessor may need to obtain possession, temporarily, for that purpose; there is no provision which covers that situation, and places any obligation on the lessor in relation to alternative accommodation. There is a statutory obligation on the lessor to allow the tenant quiet enjoyment of the premises,[9] but this must be subject to the express provisions of the Act giving a right to the lessor to enter the premises, and hence subject to the right of the lessor to enter to effect repairs which the lessor is obliged to effect.
- [12]The position therefore in my opinion is that there was no obligation on the respondent to provide alternative accommodation when there was a need to undertake repairs of such a nature that temporary possession of the premises was required. It follows that there was no obligation to provide reasonable alternative accommodation, or to make reasonable efforts to obtain suitable alternative accommodation. The only obligation was not to charge rent during the period when the tenants had to move out of the premises. That is what the respondent did, crediting the rent paid as rent in advance, but as a result of the decision of the Member the rent paid has been refunded.
- [13]If the water damage had been caused in some way by the fault of the lessor or the respondent, there may have been a right to damages which might have included the cost of alternative accommodation during the repairs, but that was not the basis of the appellant’s case, and such material as there is suggests that there was no such fault on the part of the owner. The Member was correct to conclude that there was no obligation on the respondent to compensate the appellant for the cost of alternative accommodation, and therefore it was not relevant to consider whether the cost incurred by the appellant was reasonable, or whether the appellant had failed to mitigate his loss by accepting the alternative accommodation on offer from the respondent.
- [14]It follows that whether the accommodation offered by the respondent was reasonable for the appellant, or whether the respondent had acted reasonably, was irrelevant, and hence it was irrelevant whether the respondent knew that the appellant did not have a car, at any particular time. For that reason, there was no point in investigating whether the statement in the affidavit was untrue, or deliberately untrue. It simply did not matter.
- [15]The appellant’s real problem was that he was trying to enforce a right he did not have. In those circumstances, he was bound to fail, and indeed would be bound to fail in any appeal. Leave to appeal should therefore not be given, and his application for leave is dismissed.
Footnotes
[1] A Magistrate sitting as a Member under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”) s 171(2).
[2] The QCAT Act s 142(3)(a)(i).
[3] Crime and Corruption Commission v Lee [2019] QCATA 38 at [12], citing appellate authority. See also Campbell v Queensland Building and Construction Commission [2021] QCATA 34 at [17].
[4] Craig v Mark Kelada Auto Sellers [2016] QCATA 48 at [13].
[5] Presumably a reference to the Residential Tenancies and Rooming Accommodation Act 2009 (Qld) s 94.
[6] Megarry & Wade, The Law of Real Property, 3rd Ed 1966, p 685; Austin v Bonney [1999] 1 Qd R 114 at 130; Gration v C Gillan Investments Pty Ltd [2005] 2 Qd R 267 at [78].
[7] The Act s 185(3)(b).
[8] The Act s 192(1)(b). Disputes about access can be resolved by the Tribunal: s 201.
[9] The Act s 183.