Bourke v Kenjad Rentals

[2019] QCATA 81

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Bourke v Kenjad Rentals  [2019] QCATA 81

PARTIES:

ANDREA BOURKE
(applicant/appellant)

v

KENJAD RENTALS  

(respondent)

APPLICATION NO/S:

APL194-18

ORIGINATING APPLICATION NO/S:

MCDT 274/18

MATTER TYPE:

Appeals

DELIVERED ON:

3 June 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Carmody

ORDERS:

1.    Leave to appeal granted.

2.    Appeal dismissed.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCIES – COMPENSATION – where the applicant’s statutory  compensation application for performance breaches against the lessor  had timed out because it was made more than 6 months after she became aware of  them – where the applicant requested a partial rent refund for the alleged loss of amenity from failure to perform repair and maintain obligation – whether a viable alternative claim in the circumstances – whether dismissal is fair and equitable order – where leave granted but the appeal dismissed.

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 28, 32
Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 12, 94, 419, 420, 429
Limitation of Actions Act 1974, (Qld) s 10(1)

Campbell v Donker [2013] QCATA 6

Hurst v Payatt [2017] QCATA 101

Masinello v Parker & Anor (No 2) [2013] QCATA 325
SAS Trustee Corporation v Miles [2018] HCA 55
Sztal v Minister for Immigration and Border Protection (2017) 347 ALR 405
Vessi v Howells [2013] QCAT 674
Wechsel v Andrew (No 3) [2011] QCATA 106

APPEARANCES:

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. The leave question is whether the tribunal’s decision to dismiss the applicant’s “partial rent refund” of $8060 (calculated at $310 rent reduction for 26 weeks) as a timed-out breach-based compensation claim is vitiated by its failure to consider rent relief as an alternative.

2. The proposed ground is arguable and important enough to justify a grant of leave to appeal.

   The context

3. The appellant claimed there had been a breach of the lessor’s repair and maintenance obligations under the terms of a residential tenancy agreement and applied to the tribunal for an order about it.

4. While such an application can be made during or after the end of the term of the tenancy by virtue of s 419(4)(a) Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act) s 419(3) RTRA Act mandates that it must be made within six (6) months after the applicant becomes aware of the alleged breach. The orders the tribunal may (not must) make on an application about a tenancy breach are referred to in s 420 RTRA.

5. The tribunal also has an inexact auxiliary power to make any order it considers appropriate to resolve a general dispute between the lessor and tenant about “an agreement”. It is not clear whether this provision is limited or merely includes agreements outside the description of a “residential tenancy agreement” in s 12 RTRA Act or whether monetary compensation is…