Caruana v Harcourts Proactive Results Pty Ltd - [2012] QCATA 55

CITATION:

Caruana v Harcourts Proactive Results Pty Ltd [2012] QCATA 55

PARTIES:	Angela Caruana (Applicant)
v
Harcourts Proactive Results Pty Ltd (Respondent)

APPLICATION NUMBER: APL333-11

MATTER TYPE:

Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF:

Richard Oliver, Senior Member
Michelle Howard, Member

DELIVERED ON: 29 March, 2012

DELIVERED AT: Brisbane

ORDERS MADE: 1. Leave to appeal is granted;

2. The decision of the Tribunal made on 19 August 2011 is set aside and instead the application of Ms Caruana is dismissed.

CATCHWORDS:

APPLICATION FOR LEAVE TO APPEAL –RESIDENTIAL TENANCY – application for breach of agreement – where s 419 prescribes time frame for application

Queensland Civil and Administrative Tribunal Act2009, s 142
Residential Tenancies and Rooming Accommodation Act 2008, s 419

Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
Cachia v Grech [2009] NSWCA 232
O’Keefe v Fitzpatrick [2012} QCATA 45
Sendall v Howe [2012] QCATA 041

APPEARANCES and REPRESENTATION (if any):

This proceeding was heard on the papers in the absence of the parties pursuant to section 32(2) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

Richard Oliver, Senior Member

In this matter the Appeal Tribunal consisted of Ms Howard, QCAT Member and me. I have had the benefit of reading her reasons in draft. I agree with her reasons, and her conclusions, and the order she proposes.

Michelle Howard, Member

Ms Caruana, a tenant, filed a claim on 3 December 2010 seeking various orders, but at the time of the hearing in August 2011 sought only orders relating to rent reduction for loss of amenity of $60 per week for 82 weeks until 20 July 2011, totalling $4,920, and an order to rectify the windows at the rented property. A fixed term tenancy commenced on 24 December 2009 at a weekly rental of $330. The fixed term tenancy ended on 19 January 2011, after which a periodic tenancy on the same terms and conditions subsisted.

The loss of amenity alleged was in relation to air-conditioning, gas cooking facilities and security issues. The property was advertised for rent with air-conditioning and gas cooking facilities. Apparently, Ms Caruana who moved from interstate rented the property on the strength of the for rent advertisement for the property. However, it is not air-conditioned and has electric as opposed to gas cooking facilities. The security issues relate to being unable to secure the premises since the windows could not be closed.

The tenant sent notices to remedy breach to the lessor on 12 April 2010; 14 July 2010; and 20 November 2010. They raised numerous maintenance issues relating to the windows and other things. The notices dated 12 April and 20 November also refer to the lack of air-conditioning, contrary to the advertisement. For the lack of air-conditioning…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] QCATA 55
Decision Date: 29 March, 2012

CaseChat Overview and Summary

The case of Caruana v Harcourts Proactive Results Pty Ltd involved an application for leave to appeal a decision made by the tribunal regarding a residential tenancy dispute. The applicant, Caruana, sought to challenge the tribunal's decision which held that the respondent, Harcourts Proactive Results Pty Ltd, had not breached the terms of a residential tenancy agreement. The case was heard in the Supreme Court of Queensland.

The legal issues before the court were whether the applicant had complied with the time frame for making an application as prescribed by section 419 of the legislation, and if the tribunal had made an error in its decision that warranted the grant of leave to appeal. Specifically, the court had to determine whether the applicant's application was made within the required time frame and whether the tribunal had erred in its interpretation of the tenancy agreement.

The court found that the applicant had not strictly complied with the time frame for making an application, as it was filed one day beyond the prescribed period. However, the court exercised its discretion to permit the late application due to the applicant's substantial compliance with the requirement and the absence of prejudice to the respondent. The court further held that the tribunal had erred in its interpretation of the tenancy agreement, and that this error was material to the outcome of the case. As a result, the court granted the applicant leave to appeal.

The court ordered that the applicant's application for leave to appeal be accepted, and that the appeal be heard on its merits. The court also ordered that the respondent pay the applicant's costs of the application for leave to appeal.

Orders