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Zuletta v Nicholas Daoud & Co Pty Ltd[2023] QCATA 151

Zuletta v Nicholas Daoud & Co Pty Ltd[2023] QCATA 151

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Zuletta & Anor v Nicholas Daoud & Co Pty Ltd & Anor [2023] QCATA 151

PARTIES:

ADELIZA ZULETTA AND FERNANDO ZULETTA

(applicant/appellant)

v

nicholas daoud & co pty ltd

(first respondent)

and

NATIONAL AFFORDABLE HOUSING CONSORTIUM LTD

(second respondent)

APPLICATION NO/S:

APL155-22

ORIGINATING APPLICATION NO/S:

MCDT2726/21 (Brisbane)

MATTER TYPE:

Appeals

DELIVERED ON:

26 November 2023

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

  1. Leave to appeal the decision of 5 May 2022 (MCDT2726/21) is refused.
  2. The application is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where applicant applied for leave to appeal – where tenancy dispute involved compensation claims by each party against the other – where bond held by the Residential Tenancies Authority – where tenancy ended upon termination by earlier tribunal decision – where reopening of termination decision refused – where tenants claimed compensation for wrongful termination – whether reasonable prospect of substantive relief – leave to appeal refused

Residential Tenancies and Rooming Accommodation Act 2008 Qld s 83, s 94, s 183, s 185, s 188, s 217, s 277, s 291, s 292, s 293, s 329, s 353, s 362, s 414A, s 415, s 416, s 417, s 419, s 420, s 429

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 12, s 32, s 143, Schedule 3

Austin v Bonney [1999] 1 Qd R 114

Big4 Brisbane Northside Caravan Village v Schliebs [2012] QCAT 277

Bucknell v Robins [2008] QCA 214

Cachia v Grech [2009] NSWCA 232

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404

Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388

Gould v Mazheiko & Gill [2020] QCATA 10

Griffin v Gini [2011] QCATA 325

Gubier v Queensland Department of Housing and Public Works [2020] QCATA 23

Hong v Hutton [2018] QDC 124

McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577

Proudfoot v Hart [1890] 25 QBD 42

Roberts v McGrath Estate Agents Springfield [2021] QCAT 427

Smolcic v Ray White Rockhampton [2021] QCATA 136

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

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

What is this application about?

  1. [1]
    Ms Zuletta and her son, Mr Zuletta were long-term tenants of Nicholas Daoud & Co Ltd (‘Daoud’) in a tenancy managed by the National Affordable Housing Consortium Ltd (‘NAHC’). These proceedings concern the Zulettas’ application for leave to appeal,[1] and, if successful, the appeal against a decision of the Tribunal below made on 5 May 2022 that determined, in the respondents’ favour, claims by each party against the other for compensation upon the ending of the tenancy.  
  2. [2]
    In determining whether to grant leave, the Appeal Tribunal must be satisfied that, relevantly:
    1. there is a reasonably arguable case of error in the primary decision;[2]
    2. there is a reasonable prospect that the appellant will obtain substantive relief;[3] and
    3. leave is needed to correct a substantial injustice caused by the error;[4] or
    4. there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.[5]

The factual background to the compensation claims

  1. [3]
    The Zulettas were the tenants of Daoud from on or around 1 November 2012.[6] Their tenancy was eligible for reduced rent and other incentives pursuant to the National Rental Affordability Scheme (‘NRAS’) and was managed as such by the NAHC.
  2. [4]
    On 20 July 2021, at a time when the tenancy was periodic, a Form 12 Notice to Leave without grounds (‘Form 12’) was given to the Zulettas stipulating a handover date of 20 September 2021.
  3. [5]
    In response to receiving the Form 12, the Zulettas brought an application for a minor civil dispute – residential tenancy dispute (MCDT) T200/21 – Redcliffe on 21 September 2021 seeking the following orders:              
    1. that the notice to leave be set aside as retaliatory (section 292);
    2. that the respondents compensate the Zulettas for loss of amenity during the tenancy (section 94);
    3. orders about unlawful entry (section 429);
    4. orders about keys and quiet enjoyment (section 183); and
    5. orders restraining the respondents from forceful and unlawful eviction (section 348).
  4. [6]
    To the extent the claims were monetary, they were quantified in the sum of $6,215.00.
  5. [7]
    The respondents counter-applied for a termination order, grounded upon the Zulettas’ failure to leave the tenancy after the handover date.
  6. [8]
    The matters were heard in Redcliffe on 27 September 2021, at which time the Zulettas’ claims were dismissed, and an order was made terminating the tenancy from midnight on 1 October 2021 and a warrant of possession issued to take effect on 2 October 2021.
  7. [9]
    On 1 October 2021 an application by the Zulettas to stay the termination decision in MCDT200/21 was refused and a warrant reissued to take effect on 9 October 2021 and to remain in effect until 23 October 2021. 
  8. [10]
    On 18 October 2021 an application by the Zulettas to reopen MCDT200/21 was also refused.
  9. [11]
    The warrant was executed on 21 October 2021 and an Exit Condition Report was prepared by the NAHC on that date.
  10. [12]
    The Residential Tenancies Authority (‘RTA’) held a bond in the sum of $1,344.00 that continued to be held by it until the compensation claims were heard. 
  11. [13]
    It is not clear when dispute resolution for the bond dispute was requested although from the evidence taken at the hearing, it was after the tenancy ended. Ms Zuletta obtained a Notice of Unresolved Dispute from the RTA dated 25 November 2021 in relation to the “bond dispute”. 
  12. [14]
    On 2 December 2021, the Zulettas filed MCDT2726/21 seeking the following orders under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘RTRAA’):
    1. that the respondents be directed to produce their authority to act and declarations regarding under what service model they operate (sections 206 and 208);
    2. that the respondents compensate the Zulettas for loss of amenity (section 94) and for intentional failures to remedy breach in a timely manner (section 309 and section 191);
    3. orders about failures to maintain the property (sections 185 and 196); and 
    4. orders for discovery and assessment of damage and injury (sections 348, 300, 316 and 323).
  13. [15]
    The quantum of the Zulettas’ claim amounted to $11,400.88.
  14. [16]
    On 15 March 2022 the respondents filed a counter-application seeking:
    1. dismissal of the Zulettas’ claims; and
    2. orders for payment by the Zulettas of $5,405.12 for:
      1. unpaid rent ($461.33);
      2. unpaid water invoices ($507.95)
      3. repairs ($4,308.34); and
      4. filing fee ($127.50).
  15. [17]
    In reply, the Zulettas asked for:
    1. the return of their bond;
    2. damages for unlawful retaliatory eviction, violations of entry notice requirements and failure to provide a copy of a signed lease;
    3. compensation of eight-months rent due for loss of kitchen sink functionality due to a failure to maintain (section 169);
    4. dismissal of the counter-application;
    5. penalties against the respondents for “attempted profiteering/racketeering, extortion and fraudulent mis-representation”; and
    6. order for discovery documents to investigation NAHC charity status and refuse of real estate agents licenses for misconduct including “intrusive over-surveillance, over-policing and over-charging regulations rent programs under Fair Trade Laws Act”.
  16. [18]
    The Tribunal’s decision was to order that the RTA pay out the bond of $1,344.00 to the lessor. This arose from the Tribunal’s award of compensation to the lessor that was limited to:
    1. unpaid rent ($461.33);
    2. unpaid water invoices ($114.53); and
    3. repairs ($456.00 and $400.00).
  17. [19]
    The filing fee was not awarded and, as the awarded amount exceeded the bond held, the NAHC elected to reduce their claim to the bond amount only. 
  18. [20]
    As grounds of their appeal, the Zulettas say[7] that the Tribunal erred in:
    1. failing to consider the tenants’ application to pay the bond to them;
    2. issuing a termination order and warrant of possession;
    3. not providing to the tenants a copy of any reply submissions of the lessor on the tenants’ application for reopening;
    4. failing to consider the tenants’ claim for rent reduction based upon retaliatory and discriminatory eviction;
    5. failing to find the lessor in breach of its maintenance obligations under the lease;
    6. ignoring the first Notice of Unresolved Dispute dated 10 August 2021 and miscalculating time limits;
    7. dismissing the reopening application;
    8. failing to convert the reopening application to an appeal (applying section 139(4)(b) of the QCAT Act; and
    9. permitting the termination order to advance to the end.
  19. [21]
    To deal with some of these grounds summarily: 
    1. Referencing sub-paragraph 20(a), the Tribunal did not fail to consider the tenants’ claim for their bond. The entire proceeding concerned each party’s request for compensation, with the outcome that the tenants were unsuccessful in their claims, the lessor was successful in its claim and an order on the bond was made in the lessor’s favour accordingly.
    2. The ‘errors’ identified in sub-paragraphs 20(b) and (i) relate to the termination decision made in MCDT200/21 and are outside the scope of the decision the subject of this application for leave to appeal and appeal.
    3. The ‘errors’ identified in sub-paragraphs 20(c), (g) and (h) relate to the reopening decision made in MCDT200/21. They are also outside the scope of the decision the subject of this application for leave to appeal or appeal.  
    4. As to sub-paragraph 20(f), I have reviewed all files and no Notice of Unresolved Dispute dated 10 August 2021 was tendered to the Tribunal. The only notice is the one dated 25 November 2021 (M643663) filed with and referenced in the application for a minor civil dispute – residential tenancy dispute filed in MCDT2726/21. If there is another notice a copy of it was not provided to the Tribunal. Oral evidence given by Ms Zuletta at the hearing suggests, in any event, that dispute resolution pertained to her claim of retaliatory termination only. The Tribunal cannot be found to be in error for failing to consider a document that was not filed in the proceeding and that, when evidence was given about it by Ms Zuletta, did not pertain to the tenancy dispute currently before the Tribunal.
  20. [22]
    That leaves sub-paragraphs 20(d) pertaining to the rent reduction claim and 20(e) pertaining to maintenance obligations to address herein.

The legislative framework – the RTRAA

  1. [23]
    When the matter was heard, the significant residential tenancy reforms that commenced on 1 October 2022 were not in effect. Accordingly, all references to the RTRAA herein are to prior reprints unless otherwise specified.
  2. [24]
    The RTRAA relevantly provides as follows.

Urgent vs non-urgent applications

  1. [25]
    Sections 414A to 417 provide for how tenancy applications are made, including how “urgent’ and “non urgent” applications are dealt with.
  2. [26]
    An “urgent” application is defined in section 415. It includes applications to set aside notices to leave if retaliatory, and applications for termination but not applications for compensation or rent reduction or general tenancy disputes (such as those under sections 94, 419 or 429).
  3. [27]
    Where an application combines urgent and non-urgent claims, the Tribunal will not usually hear them because:
    1. non-urgent disputes require an attempt at conciliation (section 416) which has not usually been attempted where an urgent application has been made, and although the non-urgent matter may be closely connected to the urgent matter, the Tribunal cannot make an exception nor recast the non-urgent matter so that it comes within the Tribunal’s jurisdiction outside the RTRAA;[8] and
    2. even where conciliation has been sought and has not resulted in settlement so that the Tribunal has jurisdiction to hear the matter, the Tribunal is likely to decline to do so where this would disrupt the hearing of the other urgent matters in the list.

Notices to leave without grounds

  1. [28]
    At the relevant time:
    1. A notice to leave without grounds must have provided a period of two months’ notice to leave for a periodic tenancy (section 329(2)(j)).
    2. Section 291 permitted a tenant to apply to the tribunal to set aside a notice to leave given without grounds if it is retaliatory, provided the application was made within 4 weeks after the notice is given (per section 292). 
    3. Section 293 permitted a lessor to apply for a termiation order if the tenant failed to handover vacant poession in accordsnce with the notice to leave.

Lessor’s maintenance obligations

  1. [29]
    Section 185(2) of the RTRAA requires the lessor, at the start of the tenancy to ensure:
    1. the premises and inclusions are clean; and
    2. the premises are fit for the tenant to live in; and
    3. the premises and inclusions are in good repair; and
    4. laws dealing with issues about the health or safety of persons using or entering the premises are not being breached; and
    5. the premises and inclusions otherwise comply with any prescribed minimum housing standards applying to the premises or inclusions.
  2. [30]
    During the tenancy, among other things the lessor must:
    1. take reasonable steps to ensure the tenant has quiet enjoyment of the premises;[9] and
    2. not themselves or by their agent interfere with the reasonable peace, comfort, or privacy of the tenant in using the premises;[10] and
    3. maintain the premises in a way that the premises remain fit for the tenant to live in;[11] and
    4. maintain the premises and inclusions in good repair;[12] and
    5. ensure any law dealing with issues about the health or safety of persons using or entering the premises is complied with;[13] and
    6. if the premises include a common area, keep the area clean;[14] and
    7. ensure the premises and inclusions otherwise comply with any prescribed minimum housing standards applying to the premises or inclusions.[15]
  3. [31]
    “Ensure” in this context means take reasonable steps to ascertain whether defects exist and if they do take reasonable steps to remove them or make the premises safe.  That duty has been said at common law to be a duty to keep the premises “in such repair as having regard to their age, character and locality of the premises would make them reasonably fit for the occupation of a reasonably minded tenant of the class who would likely to take them”.[16]
  4. [32]
    Tenants have a positive obligation to notify the lessor of any damage to the premises or inclusions, as soon as practicable.[17] Since the lessor is normally out of possession once the tenancy has started, a lessor will not be liable for a breach of the obligation to keep the premises in repair until the lessor has reasonable notice of the need for repairs and then fails to remedy the defect within a reasonable time.[18]
  5. [33]
    As the lessor has a statutory power to inspect, the lessor will have constructive notice of the disrepair particularly if they have engaged managing agents to perform quarterly routine inspections.
  6. [34]
    The rules of entry also govern how a lessor may obtain access to inspect and to conduct repairs or maintenance. If access is refused by the tenant, this can be a defence to the tenant’s claim for failure to maintain.[19]

Tenants’ obligations when a tenancy ends

  1. [35]
    At the end of the tenancy the tenant must leave the premises as far as possible in the same condition they were in at the start of the tenancy, fair wear and tear excepted.[20] 
  2. [36]
    In Griffin v Gini[21] Judge Fleur Kingham, Deputy President said: 

In general, the ordinary meaning of the phrase is concerned with the consequences of ordinary, not extraordinary damage (JSM Management Pty Ltd v QBE Insurance (Australia) Ltd [2011] VSC 339, [36]). In the case of “wear”, this might mean, for example, fading paint work on internal and external walls caused by sunlight over time; “tear” refers to disrepair caused by a tenant through unintentional action or through the normal incident of a tenant’s occupation (Taylor v Webb [1937] 2 KB 283, 302).

The obligation to pay rent

  1. [37]
    The obligation to pay rent arises when the rent is due and must be paid in the way stated in the tenancy agreement.[22]
  2. [38]
    A tenancy ends when the tribunal makes an order terminating the agreement[23] but a tenant “holds over” after that point until a warrant is executed.[24] Rent is payable until that time.

Compensation for breach

  1. [39]
    Claims for compensation arising from a breach of the RTRAA or the tenancy agreement are made under section 420 of the RTRAA.  
  2. [40]
    An application pursuant to section 419 must be made within six months of the claiming party “becoming aware of the breach”. There is no jurisdiction to extend the time limit.[25]
  3. [41]
    As dispute resolution is a mandatory step to commencing an application, the time limit is considered to “freeze” at the time the dispute resolution request is made.[26] 
  4. [42]
    To the extent the compensation sought is not time-barred under section 419(3), under section 420 the tribunal may make an order for the payment of money or an order for compensation on an application about a breach.
  5. [43]
    Where a lessor is claiming compensation due to an act or omission of the tenant, they must take all reasonable steps to mitigate their loss and are not entitled to receive compensation for any loss or expense that could have been avoided by taking the steps.[27]

Rent reduction

  1. [44]
    Section 94 provides that if premises are, relevantly:
    1. 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

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, then the rent payable under the agreement decreases accordingly or, if an order for a decrease in the rent is made by a tribunal, to the extent stated in the order.
  1. [45]
    The application must be brought during the tenancy: Gould v Mazheiko & Gill [2020] QCATA 10, [18].

Orders in relation to bonds

  1. [46]
    The bond paid by a tenant is a form of security, held by RTA in the event of a dispute between the lessor and tenant under a tenancy agreement. As Judge McGill SC said in Smolcic v Ray White Rockhampton [2021] QCATA 136 by Judicial Member McGill SC:
  1. [11]
    The rental bond is a form of security paid by the tenant to guard against a failure by the tenant to pay rent, or otherwise to perform the tenants’ obligations in respect of the tenancy. …
  2. [12]
    Subject to any proper claim by the lessor, the bond remains what it has always been: the property of the tenant. Under the Act it has been paid to the RTA, as a sort of statutory trustee, but it simply provides a form of security, to the amount of the bond, for any legitimate claim brought by the lessor. Subject to any such claim, it remains the property of the tenant, and the tenant is entitled to the return of it.
  1. [47]
    Upon hearing a compensation claim therefore, the bond will be dealt with, either by paying it to the lessor if the lessor’s claims succeed, to the tenant if they do not, or by splitting the payment between the two parties if the lessor’s successful claim/s do not exceed the bond.

The MCDT2726/21 proceeding

  1. [48]
    The evidence before the Tribunal comprised two folders of extensive material filed by both parties that included, without limitation:
    1. General Tenancy Agreement;
    2. Entry Condition Report;
    3. Exit Condition Report with colour invoices;
    4. Invoices/quotes for various expenses incurred by both parties;
    5. Tenancy rental ledger;
    6. Routine inspection reports;
    7. Notices to remedy breach;
    8. Notice to leave;
    9. Notice of Unresolved Dispute dated 25 November 2021; and
    10. Correspondence exchanged by the parties.
  2. [49]
    The Zulettas and Ms Mollenhauer for the respondent attended the hearing. Although only forty-five minutes are allocated for a non-urgent tenancy compensation hearing, the transcript records that the hearing commenced at 11:19am and ended at 1:01pm.  In a busy and demanding jurisdiction, the learned Adjudicator was thorough in exploring relevant issues and evidence with the parties.

Should leave to appeal be granted?

A reasonably arguable case of error in the primary decision

  1. [50]
    With respect to the ending of the Zulettas’ tenancy pursuant to the decision made in MCDT200/21 – Redcliffe on 21 September 2021, the Appeal Tribunal is not privy to the evidence presented in that matter, to the hearing transcript, nor to the reasons given for the decision made that day. The decision was not the subject of an application for leave to appeal or appeal. Matters before the Tribunal on that day included the Zulettas’ claims of retaliatory conduct, compensation for loss of amenity, issues of unlawful entry by tradespersons and, when the notice to leave was not set aside, arguments raised by the Zulettas in response to the respondents’ application for a termination order.
  2. [51]
    It is not clear whether, and if so how, the Tribunal dealt with the vexed issue of dealing with the mix of urgent and non-urgent matters together or whether the parties had engaged in RTA dispute resolution procedures to bring the compensation claims within the Tribunal’s non-urgent jurisdiction.  However, in the absence of a successful appeal, the decision stands. 

The Zulettas’ claims

  1. [52]
    As for the Zulettas’ claims in MCDT2726/21:

Production of authority to act and declarations regarding under what service model they operate (sections 206 and 208).

  1. [53]
    Section 206 does not require the lessor to produce its authority to act nor is the Tribunal empowered under that section to order it be produced.
  2. [54]
    Section 208 of the RTRAA pertains to agreements about fixtures and structural changes to the property. It permits the parties to agree to them, which the lessor did with respect to the tap and shower head fitting. It does not relieve the tenant of their make good obligations under section 188.
  3. [55]
    There was no error made in the dismissal of these claims.

Compensation for loss of amenity (section 94) and for intentional failures to remedy breach in a timely manner (section 309 and section 191) - compensation of eight months’ rent due for loss of kitchen sink functionality due to a failure to maintain (section 169) - orders about failures to maintain the property (sections 185 and 196).

  1. [56]
    As mentioned, it is not clear when dispute resolution for the bond dispute was requested, but it was certainly after 21 October 2021 when the tenancy ended and before Ms Zuletta obtained the Notice of Unresolved Dispute from the RTA on 25 November 2021. Ms Zuletta did not produce the earlier Notice of Unresolved Dispute but mentioned in the hearing that it was for her claim that the notice to leave was retaliatory.
  2. [57]
    It is not clear that the compensation and loss of amenity matters were the subject of dispute resolution, but I proceed on the basis that they did form part of the “bond dispute”.
  3. [58]
    In any event, a section 94 claim cannot be brought after the tenants have vacated the property. This is a bar to the loss of amenity claim. The learned Adjudicator was right to dismiss that claim on that basis.
  4. [59]
    Even allowing for a dispute resolution request to have been made, say, fourteen days prior to the NURD, this would time-bar compensation claims to breaches that a party became aware of on or after 11 May 2021 (six months before 11 November 2021). 
  5. [60]
    The compensation claims pertaining to the kitchen sink were the subject of a notice to remedy breach issued by Ms Zuletta on 21 September 2020 and she said in the hearing that it was fixed in January 2021. Ms Zuletta therefore became aware of the breach, and it was remedied before 11 May 2021. The claim in relation to this breach was time-barred. The learned Adjudicator was right to dismiss that claim on that basis.
  6. [61]
    The compensation claim pertaining to the bathroom leak/bedroom closet were dismissed because the tenants said they only noticed the damage when they were vacating the property. On the tenants’ own evidence, therefore, the lessor had not failed to undertake the repair because it was never brought to their attention and not obvious from routine inspections.  This claim was also correctly dismissed.

Storage, Loss of affordable lease, Rent valuation reduction, NAHC breach

  1. [62]
    The learned Adjudicator correctly noted that any claims for compensation on the ending of the tenancy were unable to be brought because the lease ended by way of a termination order of the tribunal, which necessarily means the lease was properly terminated.
  2. [63]
    The Zulettas have not argued that this finding was made in error, but rather simply wish to relitigate their complaints about the ending of their tenancy.
  3. [64]
    The learned Adjudicator was correct not to consider these claims.

Orders for discovery and assessment of damage and injury (sections 348, 300, 316 and 323).

  1. [65]
    Sections 300, 316, 323 and 348 do not apply to the proceedings: they apply prospectively to restrain a party from causing damage or injury. The tenancy had ended by the time these proceedings were before the Tribunal. The learned Adjudicator was correct not to consider these claims.

Damages for unlawful retaliatory eviction, violations of entry notice requirements and failure to provide a copy of a signed lease.

  1. [66]
    The Zulettas were not successful in their application for a finding that their eviction was retaliatory. The application to set aside on the grounds of retaliatory conduct was dismissed in MCDT200/21 and the Zulettas are estopped from raising it again.
  2. [67]
    The learned Adjudicator was right to dismiss all claims alleging retaliatory or unlawful eviction on that basis.
  3. [68]
    The failure to provide a copy of a signed lease is alleged to have occurred for the 2019-2020 renewal. This breach is well and truly out of time and the learned Adjudicator correctly dismissed it.

Penalties against the respondents for “attempted profiteering/racketeering, extortion and fraudulent mis-representation”- Order for discovery documents to investigation NAHC charity status and refuse of real estate agents licenses for misconduct including “intrusive over-surveillance, over-policing and over-charging regulations rent programs under Fair Trade Laws Act”.

  1. [69]
    The tribunal does not regulate the property industry or the conduct of real estate agents in its minor civil dispute jurisdiction. That jurisdiction is limited to “tenancy matters” where the applicant is a person who, under the RTRAA, may apply to the tribunal for a decision in relation to the matter.[28] The imposition of fines or penalties under the RTRAA, investigating and enforcing compliance with NRAS regulations or with the Property Occupations Act (Qld) or the Fair Trading Act (Qld) in the course of residential tenancy transactions are all matters that fall well outside the ambit of the minor civil dispute jurisdiction. 
  2. [70]
    The learned Adjudicator was correct to dismiss these complaints of the Zulettas on that basis.

Daoud’s claims

Rent

  1. [71]
    The Zulettas disputed their obligation to pay rent on the basis that the tenancy was unliveable because of the “harassment and bullying” they suffered at the hands of the lessor. There were no findings of harassment and bullying upon which such a claim could arise. Accusations of retaliatory conduct were dismissed in MCDT200/21. 
  2. [72]
    The Zulettas did not otherwise make submissions disputing the calculation of rent or the vacate date (other than to make a claim for rent reduction, which I have already addressed).
  3. [73]
    The tenancy ledger records that rent was paid to 11 October 2021 with a part payment of $16.38. The rent payable was $334.40 per week. To the vacate date, the rent payable was therefore $334.40/7 x 10 days, totalling $477.71 less the credit of $16.38, being the amount of $461.33 awarded. There is no error in this part of the decision.

Water invoices

  1. [74]
    The amounts awarded for water were conceded by Ms Zuletta.

Carpets

  1. [75]
    According to the photographs in the Exit Condition Report the carpets in the bedrooms were heavily stained and corrugated when the tenancy ended. The lessor sought alternative awards for the quoted cost to clean the carpets ($430.00) or to replace the carpets ($1,050.00). It transpired in evidence given at the hearing that the carpets could not be cleaned and had to be, and were, removed and replaced. According to the Entry Condition Report, the carpet was new on entry. 
  2. [76]
    In making an award of $400.00 towards the cost of replacing the carpets the learned Adjudicator observed that “it is clear from the photos on exit that the carpets are very, very heavily stained and haven’t been regularly cleaned during the course of the tenancy”.[29] This finding was well and truly open on the evidence. The cost of replacing the carpets was appropriately reduced to reflect depreciation having regard to the life of the carpets and awarded to the lessor on a finding of a clear breach of section 188 by the Zulettas. There is no reasonably arguable case of error on this point.

Plumbing repairs

  1. [77]
    The plumbing repairs came about as the Zulettas had removed the existing fixtures and replaced them with their own preferred fittings on the kitchen sink, the bathroom sink and the shower heads. According to Daoud, this damaged the fixtures and they had to be replaced at a cost of $583.88, which, after deducting a ‘reattend fee’, came down to $456.00, supported by a tax invoice pertaining to the repairs. 
  2. [78]
    According to the transcript, this was discussed in the hearing as follows:

ADJUDICATOR:  Okay.  And with the taps, why did you have to change the – I see.  They have taken the aerators out.  So does that mean they weren’t – it wasn’t water efficient anymore or something?

MS MOLLENHAUER:  Correct, which is why the property had such high water invoices.  So they took all of the aerators – it wouldn’t be an issue if they were left there. I could have screwed them back on myself, but they weren’t left there.  And then specifically, in the kitchen, they had that filter tap on there and then in the main bathroom, we had to get the new shower head because of the weight of the filter ‑ ‑ ‑ it had – because of the weight of the filter on that shower head, it had damaged the whole arm.  So I couldn’t – I had to replace it.  It wasn’t able to – and they didn’t leave the original fixtures there to be put back.  So obviously, new ones had to be bought.

  1. [79]
    Ms Zuletta agreed that she had removed and replaced aerators and shower heads but denied causing damage in doing so. She told the learned Adjudicator that she did not have time to return them to the condition they were in at the start of the tenancy, because the tenancy ended so quickly after the warrant issued.
  2. [80]
    The evidence before the Tribunal, including the tenants’ own evidence, clearly established a breach of section 188 and the Tribunal made an appropriate assessment of damage based upon the evidence before it.
  3. [81]
    There is no reasonably arguable case of error in the decision made to award the cost of these repairs to the lessor. 

A question of general importance upon which further argument, and a decision would be to the public advantage?

  1. [82]
    The claim is not one of general importance wherein a decision would be to the public advantage.

Should leave to appeal be granted?

  1. [83]
    For the reasons given, there is no arguable case of legal error in the primary decision and the Zulettas therefore do not have a reasonable prospect of obtaining substantive relief.
  2. [84]
    Further, the claim is not one of general importance such as it would be in the public interest to have it determined on appeal.
  3. [85]
    In the circumstances, leave to appeal is refused and, therefore, the application for leave to appeal is dismissed.

Footnotes

[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 143(3).

[2]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

[3]Cachia v Grech [2009] NSWCA 232, 2.

[4]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

[5]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580.

[6]See the Entry Condition Report signed 1 November 2012 and the Tenancy Ledger indicating the Bond was paid on 1 November 2012.

[7]Application for leave to appeal or appeal filed 2 June 2022.

[8]Big4 Brisbane Northside Caravan Village v Schliebs [2012] QCAT 277.

[9]Section 183(1) of the RTRAA.

[10]Section 183(2), ibid.

[11]Section 185(2)(a), ibid.

[12]Section 185(2)(b), ibid.

[13]Section 185(2)(c), ibid.

[14]Section 185(2)(d), ibid.

[15]Section 185(2)(e), ibid.

[16]Proudfoot v Hart [1890] 25 QBD 42.

[17]Section 217, ibid.

[18]Austin v. Bonney [1999] 1 Qd.R. 114; 118, 120 (Macrossan J dissenting on the order), 123, 124 (Thomas J); Roberts v McGrath Estate Agents Springfield [2021] QCAT 427 at [25]- [27].

[19]Hong v Hutton [2018] QDC 124.

[20]Clause 37 of the standard term tenancy agreement corresponding to s 188(4) of the RTRAA.

[21][2011] QCATA 325 at [12].

[22]Section 83(2) of the RTRAA.

[23]Section 277(g) of the RTRAA, corresponding with clause 36(1)(d) of the tenancy agreement.

[24]Section 353(1)(b), ibid.

[25]Gubier v Queensland Department of Housing and Public Works [2020] QCATA 23 [9].

[26]Section 416, RTRAA.

[27]Section 362, ibid.

[28]QCAT Act, s 12 and Schedule 3 Dictionary.

[29]Hearing transcript, page 1-30, lines 1-2.

Close

Editorial Notes

  • Published Case Name:

    Zuletta & Anor v Nicholas Daoud & Co Pty Ltd & Anor

  • Shortened Case Name:

    Zuletta v Nicholas Daoud & Co Pty Ltd

  • MNC:

    [2023] QCATA 151

  • Court:

    QCATA

  • Judge(s):

    Member Lember

  • Date:

    26 Nov 2023

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
Austin v Bonney[1999] 1 Qd R 114; [1998] QCA 8
2 citations
Jump To
Cite 1 - [1999] 1 Qd R 114
Cite 2 - [1999] 1 Qd R 114
Big4 Brisbane Northside Caravan Village v Schliebs [2012] QCAT 277
2 citations
Jump To
Cite 1 - [2012] QCAT 277
Cite 2 - [2012] QCAT 277
Bucknell v Robins [2008] QCA 214
1 citation
Jump To
Cite 1 - [2008] QCA 214
Cachia v Grech [2009] NSW CA 232
2 citations
Jump To
Cite 1 - [2009] NSW CA 232
Cite 2 - [2009] NSW CA 232
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
1 citation
Jump To
Cite 1 - [1984] 1 Qd R 404
Glenwood Properties Pty Ltd v Delmoss Pty Ltd[1986] 2 Qd R 388; [1986] QSC 221
2 citations
Jump To
Cite 1 - [1986] 2 Qd R 388
Cite 2 - [1986] 2 Qd R 388
Gould v Mazheiko & Gill [2020] QCATA 10
2 citations
Jump To
Cite 1 - [2020] QCATA 10
Cite 2 - [2020] QCATA 10
Griffin v Gini [2011] QCATA 325
2 citations
Jump To
Cite 1 - [2011] QCATA 325
Cite 2 - [2011] QCATA 325
Gubier v Queensland Department of Housing and Public Works [2020] QCATA 23
2 citations
Jump To
Cite 1 - [2020] QCATA 23
Cite 2 - [2020] QCATA 23
Hong v Hutton [2018] QDC 124
2 citations
Jump To
Cite 1 - [2018] QDC 124
Cite 2 - [2018] QDC 124
JSM Management Pty Ltd v QBE Insurance ( Australia ) Ltd [2011] VSC 339
1 citation
Jump To
Cite 1 - [2011] VSC 339
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd[1989] 2 Qd R 577; [1989] QSCFC 53
2 citations
Jump To
Cite 1 - [1989] 2 Qd R 577
Cite 2 - [1989] 2 Qd R 577
Proudfoot v Hart (1890) 25 QBD 42
2 citations
Jump To
Cite 1 - (1890) 25 QBD 42
Cite 2 - (1890) 25 QBD 42
QUYD Pty Ltd v Marvass Pty Ltd[2009] 1 Qd R 41; [2008] QCA 257
3 citations
Jump To
Cite 1 - [2009] 1 Qd R 41
Cite 2 - [2009] 1 Qd R 41
Cite 3 - [2009] 1 Qd R 41
Roberts v McGrath Estate Agents Springfield [2021] QCAT 427
2 citations
Jump To
Cite 1 - [2021] QCAT 427
Cite 2 - [2021] QCAT 427
Smolcic v Ray White Rockhampton [2021] QCATA 136
2 citations
Jump To
Cite 1 - [2021] QCATA 136
Cite 2 - [2021] QCATA 136
Taylor v Webb (1937) 2 KB 283
1 citation
Jump To
Cite 1 - (1937) 2 KB 283

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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