Beh v Morrison

[2014] QCATA 37

CITATION: Beh & Anor v Morrison & Anor [2014] QCATA 37

PARTIES:	Andrew Beh Cara Turnbull (Applicants/Appellants)
v
Rhys Morrison Danielle Clayson (Respondents)

APPLICATION NUMBER: APL215 -13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Stilgoe, OAM

DELIVERED ON: 10 March 2014

DELIVERED AT: Brisbane

ORDERS MADE:

1.    Leave to appeal granted.

2.    Appeal allowed.

3.    Paragraph 2 of the decision of 23 April 2013 is set aside.

4.    The proceeding is remitted to the tribunal for rehearing by the same Adjudicator

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – RESIDENTIAL TENANCY DISPUTE – where tenancy advertised with security system – where no security system – where tribunal ordered compensation for loss of system – where tribunal ordered lessor to install system - whether grounds for leave to appeal

Residential Tenancies andRooming Accommodation Act 2008 (Qld) ss 420(1)(c), 420(1)(d)

Pickering v McArthur [2005] QCA 294
Jimenez v Sternlight Investments t/a LJ Hooker Alexandra Hills[2010] QCATA 29

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. Mr Morrison and Ms Clayson rented a home from Mr Beh and Ms Turnbull. They signed the tenancy agreement believing the home had a security alarm system. In fact, the alarm system did not work.  The tenants issued a notice to remedy breach; the lessor’s agent advised that: the lessors did not intend to fix the alarm system; and the tenants could fix it at their cost but the agent could not guarantee any reimbursement of that cost.

2. The tenants filed an application in the tribunal seeking an order that the lessor install a working alarm system plus compensation for the period they were without a working system, or a rent decrease to take account of the non-working alarm.  An Adjudicator of the tribunal ordered the lessors pay the tenants $540 compensation.  He also ordered the lessors install a system within 28 days of the order and he reduced the rent by $20 per week until the system was installed.

3. The lessors want to appeal that decision.  They say that the tenants knew the house did not have an alarm system.  They say that the tenants had the option of terminating the tenancy but declined to do so.  They say that they should not be forced to install a security alarm system if they do not want to.  They say that, since the learned Adjudicator’s order, the tenants have given notice of intention to leave, so the order is of no utility.

4. Because this is an appeal from a minor civil dispute, leave is necessary. The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as His Honour then was) in Pickering v McArthur[1]:

   There are numerous authorities, in varying language but with unvarying emphasis, that leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.

   [1][2005] QCA 294 at [3].

5. The lessors accept the order of $540 compensation. Their real complaint is that the learned Adjudicator should not have exercised his discretion to order them to install the alarm system. Section 420(1)(c) of the Residential Tenancies andRooming Accommodation Act 2008 (Qld) allows the tribunal to make an order requiring an action in performance of an agreement. Section 420(1)(d) allows the tribunal to order a party to perform work in order to remedy a breach of agreement. The Act provides no further guidance about how the tribunal should exercise this discretion, or what factors the tribunal should take into account.

6. The learned Adjudicator’s reasons for decision give no clue as to the factors he considered when making his decision.  He did not have a copy of the tenancy agreement, so he did not know the term of the agreement. He had evidence that a system would cost about $2,500 to install and a minimum of $29.95 per month to monitor.  The learned Adjudicator did not assess those costs against the $20 per week compensation he ordered. He did not decide who would pay for the monitoring. 

7. The failure to give reasons:

   ... adds insult to the injury of an adverse decision. Without reasons, how can a party be confident that the case was understood and properly considered? Denial of natural justice is an error of law which means the applicant here should have leave to appeal. The absence of reasons, and its consequences, also means the appeal itself should be upheld.[2]

   [2]Jimenez v Sternlight Investments t/a LJ Hooker Alexandra Hills[2010] QCATA 29.

8. Leave to appeal should be granted on this ground alone and the appeal allowed.  Paragraph 2 of the decision of 23 April 2013 should be set aside and the proceeding should be returned to the learned Adjudicator for rehearing, only in relation to this issue.

9. The lessors ask that the appeal costs of $275 be deducted from the compensation they should pay the tenants. That decision should be left to the learned Adjudicator.