Amos v Knights
[2013] QCATA 91
•14 March 2013
| CITATION: | Amos v Knights & Ors [2013] QCATA 91 |
| PARTIES: | Mr Edward Amos (Appellant) |
| V | |
| Mrs Carol Knights, Mr Jason Knights and Mr John Knights (Respondents) |
| APPLICATION NUMBER: | APL112-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 15 February 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr C Brabazon QC, Member |
| DELIVERED ON: | 14 March 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Declare that the amount payable by the respondents to Mr Amos for unpaid rent is $603.00.1. Declare that Mr Amos is entitled to payment of $603, from the bond of $1,200.00 (No 4003772-X) held by the Residential Tenancies Authority on behalf of Mrs Carol Knights and/or Messrs Jason & John Knights.2. Order that the Residential Tenancies Authority pay $603 of the bond to Mr Amos.3. Order that Mrs Carol Knights and/or Mr Jason Knights and Mr John Knights be paid the balance of the bond - $597 - by the Residential Tenancies Authority.4. |
| CATCHWORDS: | Landlord and tenant – bond – Residential Tenancies and Rooming Accommodation Act 2008 s188(4) and 566(1)(a) |
APPEARANCES and REPRESENTATION (if any):
| APPLICANTS: | Mr Edward Amos |
| RESPONDENTS: | No appearance for the respondents |
REASONS FOR DECISION
This is an appeal about a landlord and tenant dispute. Mr Amos owns an old house at Clayfield. He lives next door. His tenants, Mrs Knights and her two adult sons, lived there from 9 September 2009 until their departure on 10 September 2011. They paid a bond of $1,200.00.
Mr Amos wants to recover these amounts from them:
(a) Internal cleaning $1,200
Repair window $ 149
Building repairs $ 465
Mowing and rubbish removal $ 200
QCAT fees $ 95
Mrs Knights did appear in person, at the first hearing before the QCAT Member, on 2 February 2012.
On 18 December 2012 it was ordered that this appeal be listed for hearing on 15 February 2013 at 11:30am. The appeal was heard, at that time. Mr Amos appeared on his own behalf. There was no appearance by Mrs Carol Knights, or by her sons Jason and John.
The QCAT file shows that a Notice of Hearing was sent by post to the parties, on 19 December 2012. It set out the time and place of the hearing.
The bond of $1,200 is still held by the rental authority.
The QCAT Member dismissed all his claims – “As I have found that this property was not in a condition that it could have reasonably been let out to begin with, I am dismissing this application.”
It is convenient to turn to Mr Amos’ grounds of appeal. In doing so, it is necessary to keep in mind the constraints upon the parties and the Member. That is, the parties were unrepresented, and not able to confidently deal with the difficult situation they were in, appearing on their own behalf. The Member took a vigorous approach, and tried hard to understand their positions and the facts. There were also the time constraints at the hearing. Inevitably, those factors meant that there are loose ends and unexplained events and gaps in the evidence.
First, Mr Amos complained that the two Knights sons were not at the hearing. There was no reason why they had to be present. That was their choice. There is nothing in that complaint.
Secondly, he complained that he was not properly allowed to examine a house cleaner, David, who had given evidence about a quote for $1,200.00, to clean the house.
David was not at the hearing. The Member called him on his mobile phone. He recalled going to the house, and responded at length to the Member’s questions about its condition – “… completely filthy – filthy top to bottom – house needs to be demolished… etc.”
The Member allowed Mr Amos to ask questions about the quote for $1,200. He did that, asking about the condition of the house. After some questioning, the Member said that a “cross-examination” was not allowed, and dismissed the witness.
Such a sudden interruption was surprising. However, Mr Amos indicated during the appeal that any further questioning would have been about contacting him to do the job which was not done by David. (There is no evidence that anybody else did any house cleaning). The Member’s intervention did not deprive him of any significant opportunity to advance his case, by further questions. It did not show bias towards Mr Amos, as he submits. It showed that she was anxious to deal with the matter in the limited time available.
Thirdly, a similar issue concerned a builder, Mr Hobson, and his quote to supply and fit a new back door. Mr Hobson was driving a truck when the Member contacted his mobile phone. He recalled the quote. He spoke about the back door, and an inside door.
Mr Amos then asked him what he thought about the construction of the house, as a registered builder.
The member intervened, saying that he could only ask questions about the door. The call then ended.
Mr Amos complains that the builder could have given helpful evidence about the condition of the house, and that it was wrong for the Member to intervene – “It was clear from the Member’s attitude to me that she had already made up her mind and did not want Hobson’s evidence to be on the record.” He submits that the Member was biased.
The exchange was unfortunate. The builder had been called without warning, driving his truck, and without any warning to the parties in the courtroom – both lay people. The Member said to Mr Amos, “you can’t call expert evidence … if you want to ask him questions it needs to be about this door.” She then said to Mr Hobson, “…I said that he couldn’t ask you that question anyway.”
“That question” related to the construction of the house. That was not relevant. Mr Amos says he wanted to ask about the condition of the house. That would have been a relevant question.
The Member then ended the call to Mr Hobson, saying “we might let you go and if for some reason we need to call you back, we might try…”
Mr Amos said nothing further about Mr Hobson. The hearing continued.
Two things prevent the suggestion that Mr Amos was denied a proper hearing – his irrelevant mention of “the construction of the house”, and the statement that Mr Hobson might be recalled. He did not request that.
Fourthly, the entry condition report is said to be undated. In fact, it is dated 9 September 09.
Fifthly, it is true that s566(1)(a) of the Residential Tenancies and Rooming Accommodation Act means that a copy of a condition report is evidence of the condition of the premises, if the report was signed by the tenant. Mrs Knights signed the report on 9 September 2009. It said, in substance, that each significant aspect of each room was “clean, undamaged, and working”.
That report is evidence, but not conclusive evidence, of the state of the house at the beginning of the tenancy.
In her affidavit of 30 January 2012, Mrs Knights made no criticism of the state of the house, beyond saying that it was “dilapidated”, which was an accurate statement. In her evidence, when asked about the condition of the house by the Member, she replied “well, the house is old, but we were desperate at the time and the rent was cheap, so that’s why we moved in.” She went on to say, that a window blew in, and the back door was smashed, as a result of the fierce storms of January 2011. The only mention of inappropriate mess, was a reference to dead leaves and plants accumulated under the house.
Now, on 19 March 2009, the Brisbane City Council had given Mr Amos an enforcement notice, requiring him to do work on the house - “within ten business days of receipt of that notice, carry out all necessary building repairs to the dwelling on the residence to make it safe.” Mr Amos contested it and, it seems, was successful in the District Court, in having it dismissed. He does say, in para 8 of his affidavit of 31 January 2012, that, “such work as was reasonable was done as a matter of course in any event.” He was not asked to give any details of such work, in the hearing before the Member.
The Council persisted – it gave Mrs Knights an order to vacate the house, 30 days after receipt of a notice dated 30 August 2011. It referred to the earlier notice of 19 March 2009, as its foundation. She did leave, on about 10 September 2011.
At the hearing, the cleaner, David, gave evidence to the effect that the house was completely filthy, and should be demolished. He said that the house had not been cleaned, “for many years”. He agreed with Mr Amos, that he was not really in a position to make a judgment about the condition of the house having got to that stage during the tenancy. He said that the dust and dirt could have been “two years”, but that the cobwebs and dirt and dust had been there “for a long time”.
The Member’s finding was consistent with that evidence, “… far more likely that the property was run down and dilapidated before the Knights ever moved in”. It correctly makes no mention of the other allegation, that there was “an infestation of vermin”. There was no evidence about vermin (meaning “noxious, troublesome or objectionable animals collectively, especially troublesome or disgusting insects or other minute animals, more particularly creeping ones parasitic on living animals or plants.”) (Macquarie) (The Council’s letter referring to “vermin” meant the waste vegetation under the house).
The cleaner observed that the house was in a really bad condition – “it was like a squatter’s house … the toilets were completely black from top to bottom … poo was on the toilet and in the showers… the walls were all filthy – the whole place was just completely filthy.”
The cleaner said that, “I couldn’t believe that someone who lived there could do that much dirt and damage to it.”
It is difficult to accept the Member’s finding, that the entry condition report described a “pristine” or “immaculate” property. Plainly, that was never the case. An old house’s rooms can be described as “clean, undamaged and working” when they are far from pristine or immaculate.
Sixthly, there are the provisions of s188(4) of the Act – at the end of a tenancy, a tenant must leave the premises and inclusions as far as possible, in the same conditions they were in at the start of the tenancy, fair wear and tear excepted.
It is common ground that the tenants organised a skip before they left. It took some things away. It should be accepted that Mr Amos took the photographs of the house on 22 September 2011. They show mess and rubbish in the rooms.
Mr Amos then took a further load to the dump.
Overall, it is difficult to accept that the house was always in that extremely bad condition as the Member found. Mrs Knight’s evidence, her affidavit and the entry condition report, do not support that conclusion. She said that they were “desperate”, but that expression does not necessarily mean that its condition was dreadful. It is likely that the Knights’ occupancy was responsible for a significant worsening of its condition. It was reasonable for Mr Amos to seek a quote for its cleaning.
Mr Amos also claims for a smashed window, and repair to an exterior door. The facts are contested, between himself and Mrs Knights. It is not possible to be certain where the truth lies. Mrs Knights says in her affidavit that the window was damaged by the severe 2011 storms. On the balance of probabilities, that evidence should be accepted.
It is agreed that a solid wooden exterior door was replaced with an interior door which deteriorated in the weather. There is conflict about the wooden door – she says that the bottom panel fell off, and down the back steps. Mr Amos says that such an event was just not possible.
It would be surprising if a tenant would exchange such doors, if there were not some good reason for it. That consideration is enough to conclude, on the balance of probabilities, that the tenants are not liable to pay for the replacement back door.
Mr Amos claims $200 for mowing and slashing the overgrown yard, and going to the Nudgee tip. He says it took him about 5 hours, and that can be accepted. The claims were not contested. However it was his own effort, and there should be no compensation for that.
The Knights left without notice. Mr Amos says that they failed to pay for thirteen days rent. The agreed rent was $325.00 a week. For thirteen days, that is $603.00. Mr Amos is entitled to recover that amount.
The cleaning quote was for $1,200. There is no evidence that the house was ever cleaned. We do not know about any outcome, of the differences of opinion, between Mr Amos and the Council, about the house – if it was demolished, or repaired, or left as it was. The quote is dated 13 October 2011 – now about a year and a half ago. The real question is whether or not he suffered actual financial loss because of its very poor condition. The evidence does not go that far. As there is no evidence of any actual expenditure on cleaning there can be no recovery of the $1,200.
Mr Amos asks for $95.00, for costs. That is the amount he has paid for QCAT fees. The usual QCAT rule is that the parties are to pay their own costs. There will be no order about those costs.
These are the appropriate orders:
1. Declare that the amount payable by the respondents to Mr Amos for unpaid rent is $603.00.
2. Declare that Mr Amos is entitled to payment of $603, from the bond of $1,200.00 (No 4003772-X) held by the Residential Tenancies Authority on behalf of Mrs Carol Knights and/or Messrs Jason & John Knights.
3. Order that the Residential Tenancies Authority pay $603 of the bond to Mr Amos
4. Order that Mrs Carol Knights and/or Mr Jason Knights and Mr John Knights be paid the balance of the bond - $597 - by the Residential Tenancies Authority.
0
0
0