Campbell v Donker

[2013] QCATA 6

CITATION: Campbell v Donker [2013] QCATA 6

PARTIES:	Peter Matthew Campbell t/as Peter Campbell Realty (Applicant/Appellant)
v
Andrew Donker (Respondent)

APPLICATION NUMBER: APL150-12

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Richard Oliver, Senior Member

DELIVERED ON: 11 January 2013

DELIVERED AT: Brisbane

ORDERS MADE:

Leave to appeal is granted.1.    

The appeal is allowed.2.    

The Tribunal’s decision of 20 April 2012 is set aside.3.    

The applicant must pay to the respondent the sum of $170 by 15 February 2013.4.    

CATCHWORDS:

MINOR CIVIL DISPUTE – Residential tenancy – where tenant complained of mould in rented premises for in excess of two years – where lessor failed to take steps to prevent the mould or investigate its cause in that period – where tenant stopped paying rent and lessor applied for a termination order – where Tribunal ordered lump sum compensation for lessor's breach of s 185 of the Residential Tenancies and Rooming AccommodationAct 2008 under s 95 of the Act – whether lump sum compensation can be ordered as a rent decrease under s 95 of the Act – whether lessor's conduct properly categorised as a breach of the residential tenancy agreement under s 419 of the Act entitling the tenant to compensation – whether the 6 month limitation in s 419 applicable – consideration of Tribunal’s power to order a rent decrease under s 95(3) of the Act

Queensland Civil and Administrative Tribunal Act2009, ss 142(3), 146
Residential Tenancies and Rooming Accommodation Act 2008, ss 95, 52, 185, 219, 420

Underwood v Queensland Department of Communities (State of Queensland) [2012] QCA 158

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. In 2008 Mr Donker entered into a residential tenancy agreement to rent a house at Jagora Drive, Albany Creek.  Peter Campbell Realty was the managing agent for the property.  Mr Donker, from the commencement of the tenancy, has complained of mould in the premises.  It seems that after a complaint was made early in the tenancy the mould issue was addressed by the agent, but not fixed, but nothing further happened until early 2012.

1. Because there was further moisture penetration into the house in February 2012, Mr Donker called in a plumber, 5 Star Plumbing and Drainage, to attend the premises and carry out urgent repairs.  Their report, which was tendered in the proceeding, states:

“Inspection of the roof area above kitchen/lounge due to water leak from valley gutter, on inspection roof found to have water damage to roof trusses and wall sheeting producing mould on interior walls.  In my opinion I believe roof need (sic) to be attended to by a builder as it has shifted with the water damage and needs repair, valley gutter and external gutter do not have sufficient gap for water to flow away.”

1. The agent was contacted but nothing was done about…