Oak Property Group v Walsh[2024] QCATA 137

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   These are two related but separate appeals arising out of a decision by the tribunal in its minor civil disputes jurisdiction relating to a residential tenancy. The agent is the appellant. The tenants are the respondents. I will refer to the parties as agent and tenants in these reasons.
2. [2]
   Matter APL099-24 is an appeal from a decision made by an adjudicator on 27 March 2024. The relevant history of the proceeding below is:

   1. 23.10.23 – tenants file application for orders relating to alleged failures by the lessor to maintain and repair the property;
   2. 29.11.23 – hearing adjourned, part heard, to 20 December 2023;
   3. 24.01.24 – hearing adjourned to 21 February 2024;
   4. 27.02.24 – Tribunal orders agent to undertake repairs to property;
   5. 27.03.24 – Tribunal orders that the parties file and serve submissions regarding compensation with matter to be relisted for hearing;
   6. 15.04.24 – agent files appeal.
3. [3]
   Matter APL101-24 is an appeal from a decision made by an adjudicator on 21 February 2024. The relevant history of that proceeding is as follows:

   1. 29.11.23 – agent files application seeking warrant of possession;
   2. 30.11.23 – Tribunal orders the transfer of the proceeding to Richlands Magistrates Court;
   3. 24.01.24 – hearing adjourned to 21 February 2024;
   4. 21.02.24 – Tribunal orders that the application be dismissed;
   5. 15.04.24 – agent files appeal.
4. [4]
   It is uncontroversial that the tenants have now vacated the property. At a directions hearing on 15 November 2024, the appellant conceded that there is little utility in matter APL101-24 proceeding.
5. [5]
   As these are appeals from decisions in the minor civil disputes jurisdiction, leave to appeal is required. The considerations relevant to granting leave to appeal are well established:

   1. Is there a reasonably arguable case of error in the primary decision?^[1]
   2. Is there a reasonable prospect that the applicant will obtain substantive relief?^[2]
   3. Is leave necessary to correct a substantial injustice to the applicant caused by some error?^[3]
   4. Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?^[4]
6. [6]
   If leave to appeal is granted, in deciding the appeal on a question of law the Appeal Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and remit the matter to the tribunal for reconsideration.^[5] The Appeal Tribunal may set aside the decision and substitute its own decision only if this results in the disposition of the appeal entirely in the appellant’s favour.^[6] An appeal on a question of fact or mixed law and fact must be conducted by way of rehearing.^[7] In deciding an appeal on a question of fact or mixed law and fact the Appeal Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and remit the matter to the tribunal for reconsideration.^[8]

APL099-24 - the proceeding at first instance

7. [7]
   On 8 September 2023 the parties entered into a written general tenancy agreement. The agreement contained a special term: ‘The in ground pool is excluded from the lease and doesn’t form part of the rental agreement.’
8. [8]
   The tenants entered into occupation of the premises on 15 September 2023.
9. [9]
   On 3 October 2023 the tenants gave to the agent a Notice to remedy breach. The Notice identified the following breach: ‘Swimming pool check as we were advised we should be able to use this (Pre-existing major leak prior to property inspection yet this was NOT discussed until after deposit $5070 had been paid & then written into lease afterwards).’
10. [10]
    There was a second Notice to remedy breach issued by the tenants dated 3 October 2023 identifying the following breaches: ‘3 ceiling fans to be replaced inclusive of working switches; power point in lounge room isn’t secure and sparks; both gate remotes are faulty (1 intermittently working and 1 broken); front and rear sliding doors require new rollers, front currently locks when you lift it up, rear does not lock at all; window requires a lock in the main lounge’.
11. [11]
    A third Notice to remedy breach was issued by the tenants dated 3 October 2023 identifying the following breaches: ‘shed lights to be repaired/replaced and stable power and water to be reconnected as per property inspection and entry report; water tank on shed requires cleaning and gutters/downpipes checked as not filling and the pump attached to the tank is broken (tank remained empty after 5 hours of heavy rain); swimming pool check as we were advised we should be able to use this however there is a pre-existing leak from the last 12 months that was not disclosed as well as a faulty filter that requires replacing.’
12. [12]
    On 14 October 2023 the tenants gave to the agent a further Notice to remedy breach. The Notice identified the following breaches: ‘both gate remotes are faulty (1 intermittently working and 1 broken; front and rear sliding doors require new rollers, front currently locks when you lift it up, rear does not lock at all; multiple windows require locks (7 total); water tank on shed requires cleaning and gutters/downpipes checked as not filling and the pump attached is broken (tank remained empty after 5 hours heavy rain); stable power and water to be reconnected as per property inspection and lease does not state it was not working; swimming pool check.’
13. [13]
    The tenants filed an application for a residential tenancy dispute filed on 23 October 2023. On the first page of the application appears a handwritten notation: ‘urgent. Water issues, no locks, non compliant with minimum housing standards dated 1/9/2023.’ In the application a number of orders were sought by the tenants, identified by reference to various provisions of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘RTRAA’):

    1. Section 191: failure to comply with maintenance obligation;
    2. Section 221: application for emergency repair order;
    3. Section 220: payment for emergency repairs (water);
    4. Section 169: loss of amenity, a service or facility;
    5. Section 221: application for routine repair order;
    6. Section 106: rent decrease, loss of amenity, service facility.
14. [14]
    In the application the tenants relied upon Notices to remedy breach dated 3 October 2023 and 14 October 2023. All of the Notices to which I have referred above were attached to the application.
15. [15]
    The general tenancy agreement was also attached to the application.
16. [16]
    The application first came on for hearing on 29 November 2023. The transcript of that hearing is not before the Appeal Tribunal. The hearing was adjourned to 20 December 2023. The matter was further adjourned to 24 January 2024. Presumably the hearing on 20 December 2023 did not proceed. On 24 January 2024 the matter was again adjourned, this time to 21 February 2024. A transcript of the hearing on 24 January is not before the Appeal Tribunal.
17. [17]
    The matter proceeded to hearing on 21 February 2024. The tenants appeared as did Mr Devlin who represented the agent. The adjudicator asked the tenants to outline the orders they were seeking. It is apparent from the transcript that the matters complained of by the tenants had been canvassed in the previous hearings. The tenants referred to the following issues:

    1. No electrical power to the stable block;
    2. Solar power inverter not properly functioning;
    3. Presence of tree adjacent to the stable block posing a hazard;
    4. Leaking roof on the stable block;
    5. Dishwasher not working;
    6. Difficulty opening and closing front and rear glass sliding doors;
    7. Sewerage system smelling; and
    8. Swimming pool unable to be used as a result of, inter alia, water leakage. 
18. [18]
    The adjudicator invited Mr Devlin to respond to each of the issues raised by the tenants.
19. [19]
    The adjudicator gave his decision and reasons at the conclusion of the hearing. It is apparent from the transcript and the reasons that the adjudicator was satisfied the following items required repair by the landlord: leaking stable block roof; the supply of electricity to the stable block; repair of dishwasher; repair of front and rear sliding doors; swimming pool filtration system. The adjudicator also ordered the landlord to service the sewerage system. The adjudicator ordered that the landlord pay the tenants $100.00 per week from the date of commencement of the lease until the tribunal was satisfied the repairs had been undertaken. The adjudicator ordered that the matter be relisted for hearing in one month to give the landlord sufficient time to undertake the repairs.
20. [20]
    It may be fairly observed that the manner in which the adjudicator gave his decision and reasons was somewhat disjointed. The adjudicator, after making the orders referred to above, then invited the tenants to address him on anything he had forgotten. The tenants raised a number of additional issues: broken fly screens; absence of an electricity supply for a pump in a water tank; non-operational intercom and lights at the gate to the entrance of the property.
21. [21]
    The final order made by the adjudicator reflected the repair order to all of the items referred to above, in addition to the compensation order of $100.00 per week payable to the tenants by the landlord.

APL099-24 - consideration

22. [22]
    As I have earlier observed, the tenants brought their application on an urgent basis.
23. [23]
    By s 416(1) of the RTRAA a lessor or tenant may apply to QCAT about an issue only if the applicant has first made a dispute resolution request and the conciliation process has ended without an agreement being reached because the RTA refuses to provide a conciliation service; or a party refuses to participate in the conciliation process; or the parties participate in the conciliation process and no agreement can be reached. An applicant may also apply to QCAT if a conciliated resolution is reached however the applicant believes the other party has breached the agreement.
24. [24]
    Section 416(2) provides that s 416(1) does not apply to an ‘urgent application’. The meaning of ‘urgent application’ is set out at s 415. Relevant to the present appeal is s 415(5)(e). An application about emergency repairs pursuant to s 221 is an ‘urgent application’. 
25. [25]
    By s 221(1)(c) of the RTRAA the tenant may apply to QCAT for a repair order for emergency repairs if the tenant has been unable to notify the lessor or nominated repairer of the need for the repair or the repair was not made within a reasonable time after the tenant gave the lessor or nominated repairer notice of the need for the repair.
26. [26]
    The meaning of ‘emergency repairs’ is found at s 214(1) of the RTRAA:

Emergency repairs are works needed to repair any of the following—

1. a burst water service or a serious water service leak;

2. a blocked or broken lavatory system;

3. a serious roof leak;

4. a gas leak;

5. a dangerous electrical fault;

6. flooding or serious flood damage;

7. serious storm, fire or impact damage;

8. a failure or breakdown of the gas, electricity or water supply to premises;

9. a failure or breakdown of an essential service or appliance on premises for hot water, cooking or heating;

10. a fault or damage that makes premises unsafe or insecure;

11. a fault or damage likely to injure a person, damage property or unduly inconvenience a tenant of premises; and

12. a serious fault in a staircase, lift or other common area of premises that unduly inconveniences a tenant in gaining access to, or using, the premises.

27. [27]
    By s 221A the tribunal may make a repair order. In considering an application for a repair order the tribunal must consider the conduct of the lessor and lessor’s agent, the risk of injury the damage is likely to cause a person at the premises and the loss of amenity caused by the damage.^[9] The tribunal may also consider any other relevant matters.^[10] In granting a repair order the tribunal may make any order, or give any directions, about the repairs the tribunal considers appropriate in the circumstance.^[11]
28. [28]
    Section 221A(4) sets out the orders the tribunal may make in granting a repair order. The (non-exhaustive) list of orders include:

    1. what is, or is not, to be repaired;
    2. that the lessor must carry out the repairs by a stated date;
    3. that the tenant may arrange for a suitably qualified person to carry out the repairs for an amount decided by the tribunal;
    4. who must pay for the repairs;
    5. that the tenant may pay a reduced rent until the repairs are carried out to the standard decided by the tribunal;
    6. that the lessor must pay an amount to the tenant as compensation for loss of amenity;
    7. that a suitably qualified person must assess the need for the repairs or inspect the premises or inclusions;
    8. that the residential tenancy agreement ends if the repairs are not completed by a stated date.
29. [29]
    In Bauer v McMillan & Anor^[12] the Appeal Tribunal held that there was no power in the tribunal to award compensation on an application for emergency repairs as an application for compensation was not ‘urgent’. However Bauer was decided before the insertion of s 221A. Section 221A(4)(e) provides that the tribunal may order that the tenant may pay a reduced rent until the repairs are carried out to the standard decided by the tribunal. Section 221A(4)(f) provides that the tribunal may order the lessor to pay an amount to the tenant as compensation for loss of amenity. It is clear from s 221A(3) and (4) that the power conferred upon the tribunal to make repair orders applies equally to emergency repairs and to routine repairs.
30. [30]
    It is not controversial that the parties had not engaged in the conciliation process in accordance with s 416(1) of the RTRAA before the tenants commenced the proceeding below. Nor is it controversial that the tenants purported to bring the proceeding as an application pursuant to s 416(2). The only way they could do this was if the application related to emergency repairs.
31. [31]
    It is not apparent from the reasons that the adjudicator directed his mind to the question of whether the matters complained of by the tenants fell within s 214(1) of the RTRAA.
32. [32]
    Unless the items complained of by the tenants fell within the meaning of ‘emergency repairs’ the tenants were not entitled to bring the proceeding unless they had complied with the conciliation process mandated by the RTRAA. 
33. [33]
    I turn now to a consideration of the various complaints by the tenants and the manner in which the adjudicator dealt with the complaints.
34. [34]
    The adjudicator made no reference in his reasons to the application of s 214(1) of the RTRAA. I accept that the minor civil disputes jurisdiction in which adjudicators hear matters and make decisions at a fast pace and often with limited assistance from parties. Reasons for decision are necessarily more succinct than might be the case in other jurisdictions in the Tribunal. Nevertheless, reasons should identify the source of power to grant the relief sought and identify whether necessary requirements for the exercise of that power have been met. In circumstances where a tenant applies for orders relating to emergency repairs and has not complied with the pre-proceeding conciliation process, the decision maker must be satisfied that the matters complained of by the tenant fall within s 214(1). In the absence of any detailed reasons by the adjudicator addressing the matters at s 214(1) I conclude that the adjudicator did not turn his mind to the section. This is an error of law. 
35. [35]
    In considering the matters, the subject of the repair orders, and the evidence before the adjudicator the following is apparent:

    1. the supply of electricity to the stable block. It cannot be contentious that the lack of an electricity supply to the stable block was present from the commencement of the tenancy. Having said this, it could not be said that the connection of power to the stable block fell within s 214(1);
    2. repair of dishwasher. The absence of a working dishwasher would be an inconvenience to the tenants however the necessary repairs, including the replacement of the dishwasher, could not be said to fall within s 214(1);
    3. repair of front and rear sliding doors. The evidence before the adjudicator was that the front and rear sliding doors could not be locked. This assertion did not appear to be contested by the lessor. Emergency repairs include works needed to repair a fault or damage that makes premises unsafe or insecure.^[13] This complaint fell within s 214(1);
    4. swimming pool filtration system. The swimming pool was specifically excluded from the tenancy. The evidence of the tenants was that they were not aware of this until it came time to sign the tenancy agreement. Nevertheless, they signed the tenancy agreement knowing that the pool was excluded. Any works to be undertaken in respect of the pool could not fall within s 214(1);
    5. servicing the sewerage system. The evidence on this issue was scant to say the least and was largely confined to the tenants’ assertions that the sewerage system smelled. The evidence of Mr Devlin was that the system was operational. There was no evidence that the system was not functioning. The fact that it may have smelled is not evidence that the system was not functional. In my view there was no evidence before the adjudicator upon which he could make a finding of fact that the system was not functioning. This matter did not fall within s 214(1);
    6. broken fly screens. There is no suggestion that the fly screens were security screens. The principal complaint of the tenants was that the windows could not be left open as the flyscreens did not prevent the ingress of insects with the result that the tenants were required to keep the windows closed, use the air conditioning system and thereby incur increased electricity costs. This matter could not be said to fall within s 214(1);
    7. absence of an electricity supply for a pump in a water tank. The water tank did not supply water to the residence. This could not be said to fall within s 214(1);
    8. non-operational intercom and lights at the gate to the entrance of the property. The complaint by the tenants was that the driveway to the residence was very dark at night in the absence of lights at the entrance. The tenants also complained that the plastic housing around a power point in the gateway pillar had deteriorated and become dangerous. There was no cogent evidence that this item of complaint fell within s 214(1).
36. [36]
    In Vetter v Lake Macquarie City Council the High Court stated:

Whether facts as found answer a statutory description or satisfy statutory criteria will very frequently be exclusively a question of law. To put the matter another way … whether the facts found by the trial court can support the legal description given to them by the trial court is a question of law.^[14]

37. [37]
    In respect of the items the subject of the repair order, with the exception of the sliding doors, the adjudicator erred in law in finding that the items fell within the meaning of ‘emergency repairs’ for the purposes of s 214(1). Alternatively, it was an error of law by the adjudicator if he failed to turn his mind to whether the items constituted emergency repairs and thereby failed to apply the proper statutory provisions. Either way, there was error. Leave to appeal should be granted.
38. [38]
    With the exception of the sliding doors, the repairs were not urgent, and the failure by the tenants to engage in the pre-proceeding conciliation process prescribed by the RTRAA was fatal to their application insofar as it related to the particular repair items.
39. [39]
    The adjudicator ordered the owner pay compensation of $100.00 per week from the date of commencement of the lease until the repair orders had been complied with. The power to order that a tenant pay a reduced rent until repairs are carried out is found in s 221A(4)(e). Making such an order involves the exercise of a discretion by the decision maker as to whether the interests of justice require a rent reduction order. The exercise of a discretion may miscarry if the decision maker acts upon wrong principle, takes into consideration extraneous or irrelevant matters, mistakes the facts or fails to take into account a material consideration, or otherwise the result is unreasonable or plainly unjust.^[15] 
40. [40]
    I have found that the adjudicator erred in making the repair orders with the exception of the front and rear sliding doors. I am satisfied that the adjudicator took into consideration irrelevant considerations in exercising the discretion to order the rent reduction, those considerations being the items complained of that should not have been the subject of an emergency repair order. The adjudicator thereby erred in law.

APL099-24 – conclusion

41. [41]
    The determination of the appeal on the questions of law I have identified, does not decide the matter entirely in the appellant’s favour. This is because I have found that the adjudicator was entitled to make the emergency repair order in relation to the front and rear doors.
42. [42]
    Accordingly the decision below must be set aside and the matter remitted to the Tribunal for reconsideration according to law and in accordance with these reasons.

Consideration – APL101-24

43. [43]
    The adjudicator refused the lessor’s application for a warrant of possession to issue based on the tenants’ failure to pay rent. The appellant concedes there is little utility in the appeal noting that the tenants have vacated the premises. Accordingly, even if there is an arguable case of error by the adjudicator there is no reasonable prospect that the applicant will obtain substantive relief nor is leave to appeal necessary to correct a substantial injustice to the applicant.
44. [44]
    Accordingly in APL101-24, leave to appeal is refused.