Challands & Anor v Jackson
[2014] QCATA 330
•12 November 2014
| CITATION: | Challands & Anor v Jackson [2014] QCATA 330 |
| PARTIES: | Lewis Challands and Jason Engel (Appellants) |
| v | |
| Sukhan Jackson (Respondent) |
| APPLICATION NUMBER: | APL283-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 9 and 10 November 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 12 November 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application for leave to appeal is dismissed. |
| CATCHWORDS: | APPLICATION FOR LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY DISPUTE – where tenants purport to end tenancy for non-liveability – where landlord concedes defects in premises but denies non-liveability and sues for rent and reletting expenses – where premises are a 60-80 years old house in old inner suburb – whether admitted defects in premises render premises unliveable – whether Tribunal arguably erred in rejecting claim of unliveability – whether leave to appeal should be granted – leave refused Queensland Civil and Administrative Tribunal Act 2009 ss 32, 142 Residential Tenancies and Rooming Accommodation Act 2008 ss 94, 214 – 220, 284, 301, 302, 309, 329, 331, 420 Absolon v NSW Technical and Further Education Commission (1997) 75 IR 47; affirmed [1999] NSWCA 311 Johnson v Queensland Police Service [2014] QCA 195 Lewington v Lunt [2013] QCATA 341 McIver Bulk Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Manonai v Burns [2011] WASCA 165 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Mirage Resorts Holdings Pty Ltd (as trustee of the Mariners Paradise Property Trust) v Brellen Pty Ltd [2003] QCA 579 Quinn v Butler & Williams [2003] NSWCTTT 176 Scagliotti v Boyd [1962] Qd R 481 Seaby v Queensland Building Services Authority [2008] CCT QR042-06 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 Shaw, Estate of K M v Waddell [2014] QCAT 155 State of Victoria v Bacon (1984) 4 VR 269 Strbak v Newton [1989] NSWCA 202 The Owners Strata Plan 62930 v Kell & Rigby Holdings Pty Ltd [2008] NSWSC 612 Thompson and Anor v Jedanhay Pty Ltd [2012] QCATA 246 W (an infant), In Re [1971] AC 682 Watson v Massey Real Estate Pty Ltd [2013] QCATA 98 |
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 (QCAT Act).
REASONS FOR DECISION
Few yearly tenancies can be so fleeting as that of Messrs Challands and Engel (“the Tenants”) in the cottage of Sukhan Jackson (“the Landlord”) at 37 Hayward Street, Paddington (“the premises”). On 10 January 2014, after a brief inspection the previous day, the Tenants lodged an application to lease which stated inter alia that the premises were in clean and fair condition. The lease itself was signed on 15 January 2014, and the Tenants moved in on 18 January 2014. They gave notice of intention to leave that same day. They declared the premises were non-liveable without living in them.
The purported termination of the tenancy was based on a document known as a Form 13.[1] It provides a simple substitute for the equitable remedy of rescission. Its efficacy depends on proof by the notice giver[2] that the premises are not merely defective or uncomfortable, but uninhabitable.[3] It predicates an originally valid lease to be terminated, as the Tribunal found. The Tenants signed the agreement after a brief inspection by the first appellant, who admits that it could have been longer, had he arrived on time for the relevant appointment.[4] An arrangement for a second inspection fell through when the Tenants were otherwise engaged.[5]
[1]On the ground of non-liveability: Residential Tenancies and Rooming Accommodation Act 2008 (RTRAA) ss 284(1), (3), 329(2)(d), 331(2)(c).
[2]FV Rentals (t/a Forbes Realty Rentals v Anderson [2014] QCATA 181 at [11].
[3]The Owners Strata Plan 62930 v Kell & Rigby Holdings Pty Ltd [2008] NSWSC 612 at [211].
[4]Transcript of hearing 10 April 2014 (Transcript) page 65 lines 30 – 31 (Collins), 35 (Challands Snr).
[5]Ibid page 15 line 40, page 16 lines 15 – 17, page 17 line 13.
The Landlord rejected the Tenants’ assertion of non-liveability, and commenced these proceedings for 19 week’s rent, re-letting costs, and QCAT’s filing fee. The Tenants denied liability.
On 10 April 2014 the dispute came before Stackpoole and Griffiths JJP. The Landlord was represented by Jordan Gallagher (of his agents Rental Express), and the Tenants by Phillip Challands, a retired accountant and father of the first appellant.[6]
[6]The appearance of Challands Snr was the subject of a late and insubstantial complaint by the Landlord’s representative: Landlord’s submissions filed 15 October 2014. No such complaint was made at the hearing.
Oaths were administered to Gallagher and Challands Snr (who acted as witnesses as well as advocates) and to Sophie Collins, Gallagher’s colleague at Rental Express.
After a hearing in excess of two hours the Tribunal dismissed the Tenants’ plea of non-liveability, awarded the Landlord 16 days’ rent and filing fee ($1,198.54) and ordered the Residential Tenancy Authority to refund the balance of the bond moneys ($721.46) to the Tenants. The Landlord’s claim for reletting costs was disallowed.[7]
[7]Transcript page 88 line 37.
From that decision the Tenants now apply for leave[8] to appeal, and an order that the existing award be set aside.
[8]As required by QCAT Act s 142(3)(a)(i).
Res judicata misapprehended
The Landlord seeks to forestall that application by a plea of res judicata. That submission is quite misconceived. The res judicata doctrine does not apply until any appeal from the primary judgment is determined. If the present submission were correct, there would be no right of appeal in any court or tribunal.
Grounds of proposed appeal
The grounds of appeal are to be distilled from an annexure to the application for leave. They are defined and limited by that document. The submissions in support of that application are not a supplementary or amended notice of appeal. Their function is to present arguments in support of the grounds originally notified to the other party.[9]
[9]Scagliotti v Boyd [1962] Qd R 481 at 494; McIver Bulk Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 581; State of Victoria v Bacon (1984) 4 VR 269 at 285.
The initial assertion in the notice of appeal, namely: ‘the process of the hearing was flawed from the outset’ is merely a general expression of dissatisfaction. It presents no ground of appeal.
The Tribunal gave no, or no sufficient weight to the Tenants’ written statement filed on 4 April 2014: Several days before the hearing the Tenants filed written material comprising 11 pages of evidence and argument, together with photographs of the premises (“the April submission”).
The April submission includes a statement by Marc Hoffman, who describes himself as a qualified carpenter, licensed by the Building Services Authority. On 20 January 2014 Hoffman inspected the area beneath the house and an outdoor “entertainment area”, but not the house itself.
Hoffman describes the entertainment area as a concrete apron with a low block wall topped by a wooden fence. This area, in his opinion, was in ‘an advanced state of disrepair’. Specifically, some ten palings were ‘entirely or partly detached’ from the fence. ‘Some’ of the ten lay on the ground, with nails protruding. A short section of the fence ‘had its primary support rotted out’ and was unstable. If a person fell against it, nails thus exposed could cause injury. Bolts securing steel seats were rusted through, and the seats rested on wooden blocks. Hoffman’s summary view was that ‘the probability of injury occurring ... is unreasonably high’ particularly if users ‘were consuming alcohol’. He considered that ‘a building inspector would condemn the structure’. The admissibility of that summary need not detain us here.
As described by Hoffman the area below the house (an elevated “Queenslander”) had these defects: The door at the rear was ‘in poor repair’. There were exposed nails on top of the gatepost, the gate was unstable, and the pad bolt did not work. Another downstairs door could not be locked, nor could the door to the garage.
The rest of the April submission (pictures aside) is an 8-page statement by the appellant Challands. The substance of it was repeated in oral submissions, and need not be recited at length here. Challands (an engineering student) was seeking accommodation closer to the QUT than his parents’ home at Samford. He inspected the premises briefly[10] and was satisfied that they ‘could, on cleaning, suit our purposes. It really suited them’.[11] At the commencement of the tenancy on 18 January 2014 he found (so he says) that the promised cleaning was merely a ‘cursory sweep’ that had failed to remove ‘rat faeces, mould, rubbish, dust and grime’. (That version is disputed in direct evidence by Collins.[12]) Repairs were needed to the front door lock, kitchen taps, drain pipe, electrical wiring in the downstairs laundry, entertainment area, and downstairs doors. Challands then proceeds to argue questions of law and fact concerning the tenancy agreement, the RTRAA, electricity regulations and fundamental breach.
[10]See paragraph [2], above.
[11]Transcript page 43 lines 26, 36 (Challands Snr).
[12]Ibid page 25 line 1, page 26 lines 4 – 8, page 64 line 46. An opportunity to contest that evidence directly was passed over: page 60 lines 1 – 11.
Through no fault of the Tribunal the April submission was not drawn to its attention before the hearing, although the Landlord received a copy earlier.[13] However, when it was referred to in the course of the hearing, the Tribunal at once adjourned to consider it,[14] the Tenants’ representative consenting.[15] As the adjournment did not involve a departure of the members from the hearing room, the transcript does not record its length. At all events there was no application for a longer period of consideration, and the members had a further opportunity to consider the April submission as the hearing proceeded, and when they adjourned to consider their decision. Unsubstantiated comments that the Tribunal ‘did not absorb it’s [sic] content in any meaningful way’ and that the late appearance of that material ‘had a significant and detrimental effect on the outcome’ evince general dissatisfaction with the result, but establish no appellable error.
[13]Ibid page 45 line 21 (Collins).
[14]Ibid page 45 lines 32 – 33.
[15]Ibid page 46 line 16.
The Tribunal gave disproportionate weight to the ages of the Tenants and the age of the premises: Midway through the hearing Griffiths JP asked ‘How old is Lewis [first appellant]?’. His representative replied: ‘24’. Challands Snr did not answer the next question (‘Has he ever leased before?’) and the brief exchange ended (unresponsively) in the proud assurance: ‘He’s no fool’. In the reasons for decision the relevant references are notably brief.[16] The age of the house is dealt with in just 9 lines.[17] There is no substance in this submission.
[16]Ibid page 74 lines 42 – 43; page 75 line 6 (5 words).
[17]Ibid page 75 lines 13 – 22.
The Tribunal gave no, or no sufficient weight to evidence of the condition of the premises’ entertainment area: The issue before the Tribunal was not whether the premises were defective (a point not seriously disputed) but the radical question: Were the premises non-liveable? A shabby “entertainment area” in the backyard could reasonably be seen by the Tribunal as peripheral to that issue. The duty to give reasons does not require discussion of evidence so regarded.[18] Trial judges (and tribunals) must balance their duty to explain with their duty to be brief.[19] The ex tempore decisions of hard-pressed primary tribunals are not to be pedantically parsed and analysed.[20] A fine-tooth comb should not be used in search of some verbal slip to justify appellate intervention.[21] Criticism of reasons for judgment should be adjusted to the circumstances,[22] including the nature of the question to be decided, and the functions, attributes and talents of the member or members:[23]
It is plainly unnecessary for a judge to refer to all the evidence ... The extent of the duty to record evidence given depends, as the duty to give reasons does, upon the circumstances of the individual case.[24]
[18]Kiama Constructions Pty Ltd v Davey (1986) 40 NSWLR 639 at 647; Mirage Resorts Holdings Pty Ltd (as trustee of the Mariners Paradise Property Trust) v Brellen Pty Ltd [2003] QCA 579 at [55] – [56].
[19]Strbak v Newton [1989] NSWCA 202 at page 7 per Samuels JA.
[20]Commissioner of Taxation v Baffsky (2001) 122 A Crim R 568 at 578 per Spigelman CJ; FV Rentals t/as Forbes Realty Rentals v Anderson [2014] QCATA 181 at [6]; Manonai v Burns [2011] WASCA 165 at [56]; Absolon v NSW Technical and Further Education Commission (1997) 75 IR 47; affirmed [1999] NSWCA 311.
[21]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291 – 292 per Kirby J.
[22]Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219; [2009] QCA 66 at [60].
[23]Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462 at 485.
[24]Mifsud v Campbell (1991) 21 NSWLR 725 at 728 per Samuels JA.
When the true nature of the inquiry – liveability or non-liveability – is steadily borne in mind, this complaint reveals no appellable error.
The Tribunal erred in law and fact in its finding that the Tenants did not allow the Landlord sufficient time to remedy defects: The Tenants went into occupation, gave notice of intention to leave, and left, on the same day – a Saturday. It cannot be reasonably suggested that all or most of the defects complained of could be rectified that same weekend, and by the Monday the Tenants had gone. Contrary to their claim that the agents refused several requests for remedial action[25], their advocate notes the view that there ‘was nothing [they] could do about it until Monday morning’.[26] The Landlord admits that there were ‘maintenance items that need[ed] to be attended to’, but says that no reasonable opportunity to remedy them was given.[27] In view of the immediate walkout, the Tribunal was entitled to accept that submission.
[25]Grounds of appeal filed 25 June 2014.
[26]Transcript page 72 lines 1 – 2 (Challands Snr).
[27]Ibid page 35 line 1; page 38 lines 28 – 29 (Gallagher).
Moreover, remedial action is not a real issue, because this is not a case in which the Tenants resorted to the more temperate remedies in sections 301[28] and 302[29] of the RTRAA. Instead, they chose the radical course of condemning the premises as non-liveable, an allegation (if well founded) that ended the tenancy forthwith.[30]
[28]Notice to remedy lessor’s breach.
[29]Notice of intention to leave for unremedied breach.
[30]RTRAA s 329(2)(d).
The Tribunal gave no, or no sufficient weight to the Tenant’s submissions based on subsection 185(1) of “the Tenancy Agreement”: Clearly this submission should refer to subsection 185(2) of the RTRAA. However, the ultimate issue for the Tribunal – the issue raised by the Tenants’ choice of their defence – was not whether the premises were substandard within the meaning of section 185, but whether they were utterly non-liveable, within the meaning of section 284. It is quite possible for an adverse finding to be made under section 185, without any suggestion that premises are non-liveable.[31] That is a question of fact, degree and judgment, and in many such cases an application of section 284 is not warranted. In photographic, documentary[32] and oral[33] evidence the Tribunal was made well aware of the Tenants’ complaints, and in several instances sharply questioned the Landlord’s representative about them. The Tribunal recognised that few renovations had been made to the house, which was at least 60, and perhaps 80 years old.[34] It recognised the importance of an electrical fault[35], but pointed out that the Tenants themselves, if they had stayed, could have ordered emergency repairs at the expense of the landlord.[36] There was also evidence that other tenants leased and accepted the premises about 3 weeks after the appellants purported to avoid their lease.[37]
[31]The Owners Strata Plan 62930 v Kell and Rigby Holdings Pty Ltd [2010] NSWSC 612 at [211].
[32]Statement of Lewis Challands filed 4 April 2014, particularly sections 3 – 6.
[33]See for example Transcript page 23 lines 4 – 16; page 32 lines 5 – 10, 16 – 28; page 33 lines 11 – 23; page 37 lines 43 – 46; page 39 lines 18 – 22.
[34]Transcript page 75 lines 13 – 17, 22 – 23.
[35]Ibid page 75 lines 44 – 45.
[36]Ibid page 76 lines 4 – 5, 10 – 11; RTRAA ss 214 – 220.
[37]Email Rental Express to appellants 3 February 2014.
There is no reasonable basis for a complaint that material relevant to section 185 was given no, or no sufficient weight. Rather, the Tribunal did not consider that any breaches of that section amounted to non-liveability. That was a judgment for it to make. This ground reveals no appellable error.
The Tribunal erred in taking into account the Landlord’s agent’s evidence that there were other, contemporaneous applicants for a lease of the premises: The point of this complaint is by no means clear. There is credible evidence that there were competing applications to lease premises. The Tenants dispute that claim, but do not suggest that their contractual freedom was affected by untrue representations that there were rival applicants. Their complaint is that ‘the Tribunal’ was unduly influenced by such evidence. Just how the Tribunal was influenced by it is not explained. In the Tribunal’s very brief reference to this topic it merely observes that ‘no one was pressuring them’.[38] If it is intended to suggest that the Tribunal should have rejected the evidence about other applicants, that is an unwarranted denial of its prerogative as judge of fact. There is no indication that the possible existence of other applicants materially influenced the ultimate decision. Whatever the precise meaning of this complaint may be, it reveals no appellable error.
[38]Transcript page 74 line 46.
Overview
Where defective housing is concerned, non-liveability is at the high end of the spectrum. Landlords’ breaches of warranty frequently fall short of that extreme.[39] The RTRAA does not attempt to define non-liveability. Its meaning is therefore to be derived from contemporary English usage. Ultimately it is a matter of fact, degree and judgment in all the circumstances including the amount of rent payable, climatic conditions, the remediability of existing defects, the reasonable expectations of people in the tenants’ position, and the age and location of the premises. Judicial applications of “non-liveability” and similar expressions to particular premises offer guidelines, but not precedents. As Wilson J (then President of this Tribunal) said in Cameron v Spalding[40], where crumbling asbestos walls in a 50 years old house were a casus belli, questions of fitness and state of repair must be assessed reasonably, in the light of age, character and locality.
[39]The Owners Strata Plan 62930 v Kell and Rigby Holdings Pty Ltd [2010] NSWSC 612 at [211].
[40][2012] QCATA 145, citing Bond v Weeks [1999] 1 Qd R 134.
Unsurprisingly, a non-liveability plea was upheld in Seaby v Queensland Building Services Authority,[41] where a damaged sewage and waste water line forced the tenants to use the local service station’s toilets and to wash in hand buckets. In another clear case, the premises were badly damaged by fire.[42] In yet another, the ceiling was in danger of collapsing, rainwater regularly entered the bedrooms, kitchen, and sunroom.[43] A house with no functional bathroom or kitchen, plaster falling from its walls, other walls missing, and a backyard full of building rubble is also a candidate for a Form 13.[44]
[41][2008] CCT QR042-06. See also Estate of K M Shaw v Waddell [2014] QCAT 155 (sewage problems and leaking bedroom roofs).
[42]Perpetual Limited (formerly known as Perpetual Trustees Australia Limited) v Marwa Dilati [2011] NSWSC 891.
[43]Cardiacos v Cooper Consulting & Construction Services (Aust) Pty Ltd [2009] NSWSC 938.
[44]Roy & Anor v Lagona [2010] VSC 250.
On the other hand it was decided that premises were not unliveable when a bathroom pipe burst and flooded the carpeted interior with 1800 litres of water: ‘I accept that the tenant believed the premises were unliveable, but that doesn’t make it so’.[45] “Uncomfortable” premises were found to be liveable in Lewington v Lunt.[46] Quinn v Butler & Williams[47] involved a litany of defects similar to the recital of the present Tenants, including ‘rat faeces in a kitchen draw and general dirtiness’. It was held that, while considerable maintenance was required, the premises were not unliveable. In Carey v Robson[48] the NSW Court of Appeal declared that a house built in 1928 was liveable, although ‘maintenance and renovation work could well be done’. In another recent NSW case tenants complained of pervasive mould causing ‘numerous health issues including sore eyes, chest tightness, poor concentration and difficulty sleeping’. Dismissing a claim of non-liveability the tribunal found that the tenants had not taken reasonable steps to mitigate their discomfort by attempting to remove or reduce the mould.[49]
[45]Macalindon v Maddock (Residential Tenancies) [2014] VCAT 96 at [22].
[46][2013] QCATA 341.
[47][2003] NSWCTTT 176.
[48][2010] NSWCA 212.
[49]Bannister v Cheung & Anor [2014] NSWCATCD 105.
These Tenants chose to defend the Landlord’s claim on an all-or-nothing basis, when they might have chosen less drastic remedies, such an application for a rebate of rent[50], or for damages for loss of amenities.[51] Alternatively, and still moderately, they could have resorted to a notice to remedy reinforced, if necessary, by a notice to leave[52], or an order of the Tribunal[53]. Again, as both the Tribunal and the Landlord point out, they could have relied on the “emergency repair” sections of the RTRAA.[54] They may even have tried some self-help[55], such as a modicum of sweeping, or a safe repositioning of loose fence palings with nails removed or downturned.
[50]RTRAA s 94(1)(a); Choudhuri v Whight [2011] QCATA 193 (inundation by flood waters).
[51]RTRAA s 420(1)(e); Watson v Massey Real Estate Pty Ltd [2013] QCATA 98 (Wilson J, non-liveability claim rejected).
[52] RTRAA ss 301, 302.
[53]RTRAA s 309.
[54]RTRAA ss 214 – 220.
[55]As recommended in Carey v Robson, above.
However, they chose to rely upon a plea – non-liveability – which, as the cases show, calls for compelling evidence and imposes a particularly high standard of proof. They must now live with that decision. In the event, the Tribunal, as the appointed judge of fact and credit, was not satisfied that their ambitious plea was warranted. The Tribunal’s decision was not reached lightly; close questioning of the Landlord’s case occurred at several stages.[56] An appeal tribunal may not grant leave to appeal unless it is fairly arguable that, on the evidence, no primary tribunal, acting reasonably and in good faith, could have reached the conclusion in question, and an appeal is needed to remedy a substantial injustice to the appellant.[57] As the Tenants’ case does not meet that test, leave to appeal must be refused.
[56]See eg questioning of Gallagher by Griffiths JP at Transcript pages 24, 52 – 53, 55.
[57] Johnson v Queensland Police Service [2014] QCA 195.
Applications for leave to appeal: proper limits
The purpose of the leave to appeal proviso is to ensure that the primary decision will normally be final. Before an appeal will be entertained, the appellant must demonstrate an arguable case of error, which, if left uncorrected, will result in substantial injustice. “Error” means an error of law, or a finding of fact that is not merely debateable, but rationally indefensible. Exceptionally, leave may be granted to examine a question of public importance, but few minor civil disputes satisfy that description.
An essential, but often overlooked point is that an application for leave to appeal is not an opportunity to re-run the trial, or to second-guess the primary fact-finding process. It is not an occasion to repeat and reargue evidence that was reasonably rejected by the first decision-maker, or to present material that could have been put before him, but was not.[58] Certainly it is not nearly enough for an applicant to express disappointment, or to entertain a subjective feeling that justice has not been done.[59]
[58]Snell v Morgan [2011] QCATA 316 at [10]; Thompson and Anor v Jedanhay Pty Ltd [2012] QCATA 246 at [28].
[59]Robinson v Corr [2011] QCATA 302 at [7].
It is not an appellable error to prefer one version of the facts to another, or to give less weight to one party’s case than he thinks it deserves. Findings of fact will not be disturbed if they have rational support in the evidence, even if another reasonable view is available.[60] Where reasonable minds may differ, a decision is not erroneous simply because one conclusion has been preferred to another possible view.[61] Those are the principles that must be applied here.
[60]Fox v Percy (2003) 214 CLR 118 at 125 – 126.
[61] Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at
[131]; In Re W (an infant) [1971] AC 682 at 700; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025.
ORDER
The application for leave to appeal is dismissed.
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