Champion & Anor v Laterma Pty Ltd & Ors

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Champion & Anor v Laterma Pty Ltd & Ors [2018] QCAT 392

PARTIES:

RICHELLE CHAMPION
BRIAN DAUNTER
(applicants)
v

LATERMA PTY LTD

CHRISTOPHER CLAYTON
GRANT CLAYTON
(respondents)

APPLICATION NO/S:

T1113/18 (Southport)

MATTER TYPE:

Residential tenancy matters

DELIVERED ON:

28 November 2018

HEARING DATE:

13 September 2018

HEARD AT:

Southport

DECISION OF:

Adjudicator Alan Walsh

ORDERS:

1.   The Respondents pay the Applicants $298.09.

2.   If the Respondent Laterma Pty Ltd pays the Applicants some or all of $298.09 then the Respondents Christopher Clayton and Grant Clayton must reimburse Laterma Pty Ltd that amount.

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – MINOR CIVIL DISPUTE – TENANCY DISPUTE – where former tenants applied to the tribunal for rent reduction orders and compensation for breach of lease

LANDLORD AND TENANT –– RENT – where section 94 of the Residential Tenancies and Rooming Accommodation Act 2009 (RTRAA) permits rent reduction orders for substantial decrease of amenity or standard where premises partly unfit to live in – where section 419 RTRAA permits compensation for breach of lease – where section 420 RTRAA empowers Tribunal to order compensation upon application – where application for compensation for lease breach permitted during lease term or after lease ends – where no similar provision to section 419 concerning claims under section 94 – whether rent reduction application may be filed after end of lease

LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – OBLIGATIONS, PROHIBITED MATTERS AND PROTECTION FOR LESSEES – where former tenants applied for rent reduction after expiry of residential tenancy – whether amenity or standard of premises decreased substantially during tenancy – whether premises partly unfit for human habitation – whether claim of former tenants made too late

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES FOR BREACH OF CONTRACT – where former tenants applied after end of lease for compensation – whether compensable loss proven – whether losses and outlays causally connected with condition of premises – generally whether claimed losses and outlays compensable

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES FOR BREACH OF CONTRACT – where compensation claimed for tenant loss of tutoring income – whether loss within contemplation of the parties at the time of contracting – whether rule in Hadley v Baxendale applies – whether loss proved

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JOINDER OF CAUSES OF ACTION AND OF PARTIES – PARTIES – where former tenants only sued agent – where Tribunal ordered joinder of owners – whether contribution or indemnity recoverable by agent from owners

Acts Interpretation Act 1954 (Qld), s 10(1)(d), s 14A,
s 14B, s 35A
Housing Legislation (Building Better Futures) Amendment Act 2017
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 6, s 10, s 11, s 12, s 13, s 16, s 28
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 4, s 52, s 94, s 185, s 206, s 325, s 416,
s 417, s 419, s…

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Details
Case
[2018] QCAT 392
Decision Date

CaseChat Overview and Summary

In Champion & Anor v Laterma Pty Ltd & Ors, the tenants, Richelle Champion and Brian Daunter, sued the real estate agent, Laterma Pty Ltd, and the owners, Christopher Clayton and Grant Clayton, for breaches of their residential tenancy agreements and under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). The tenants alleged numerous defects in the property, including inadequate security, non-functional lighting, and structural issues, but did not suffer any direct loss or injury from these defects. The primary legal issue before the court was whether the tenants were entitled to a reduction in rent under section 94 of the Act due to the property's condition. The court had to determine if the tenants had made the necessary applications within the stipulated timeframe and whether the property's condition warranted a rent reduction.

The court found that the tenants did not apply for a rent reduction within the required period, rendering their claim under section 94 of the Act time-barred. The court also held that the property's condition, while poor, did not reach the threshold necessary to justify a reduction in rent. The tenants had not suffered any direct loss or injury from the property's condition, which was a critical factor in the court's decision. The court further noted that the property's age and the prevalent issue of "concrete cancer" on the Gold Coast, while contributing to the property's poor condition, did not automatically entitle the tenants to a rent reduction.

The court's reasoning focused on the statutory requirements for rent reduction applications and the tenants' failure to meet these requirements. Additionally, the court considered the tenants' lack of direct loss or injury from the property's condition as a significant factor in denying the rent reduction claim. The court ordered that the respondents pay the applicants $298.09, with a reimbursement obligation from the owners to the agent if the latter makes any payment to the tenants.

Orders

Orders of the court

1. The Respondents pay the Applicants $298.09.

2. If the Respondent Laterma Pty Ltd pays the Applicants some or all of $298.09 then the Respondents Christopher Clayton and Grant Clayton must reimburse Laterma Pty Ltd that amount.

Background

Background to the litigation

Amongst other questions arising in this case is whether and when it is too late to file an application with the Queensland Civil and Administrative Tribunal (QCAT) for rent reduction orders pursuant to section 94 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (“the RTRAA”).Facts Richelle Champion (Ms Champion) and Brian Daunter (Dr Daunter) leased a unit at 9/14 Vista Street, Surfers Paradise (the premises) on the Queensland Gold Coast from licensed real estate agent Laterma Pty Ltd (the agent) trading as Ray White Broadbeach between 15 January 2017 and 26 July 2018 under consecutive residential tenancy agreements. The premises are owned by Christopher Clayton and Grant Clayton (Messrs Clayton) and comprise a strata-titled unit in a three-story walk-up block of apartments with associated common areas (the property) one street removed from the beach.[1] The premises and property are somewhere between 30 and 40 years old.[2] [1]T1-20 lines 10 to 15.[2]T1-19 lines 26 to 44. Internally, the premises were in dilapidated condition. The property was (and is) structurally challenged. Also, by neglect and inadequate maintenance, parts of the common areas of the property were in a state of significant disrepair as will be seen from the evidence of the parties to which I will refer. Like many older beachside structures, the building, of which the premises are a part, is affected by what colloquially is called ‘concrete cancer’ from salt air corrosion. Anecdotally, it is endemic on the Gold Coast. If repairable at all, concrete cancer is very costly to address[3] and has caused the gradual structural deterioration of the building over a long time.[4][3]For example, see and the 2015 article “Gold Coast high rise cancer epidemic sparks concerns” and and the article “Time up for Gold Coast high rise as concrete cancer warning loom.”[4]T1-20 lines 1 to 30. Australian Unit Administration (the body corporate manager) is, and at all relevant times was, the body corporate manager of the property saddled with the responsibility for properly administering the body corporate’s affairs and property on behalf of lot owners in the scheme. The term of the first lease of the premises for a year commenced on 15 January 2017 and ended on 14 January 2018[5] at a rental of $300 per week.[6] The tenants were happy to stay on in the premises despite their condition. They signed a second lease for a further twelve months to commence upon the expiry of the first lease. [5]T1-10 lines 14 to 44.[6]T1-9 line 16. The second lease commenced on 15 January 2018 for a term ending on 13 January 2019 at a rental of $320 per week.[7] Because it is relevant and was not addressed by the parties at the hearing, I have informed myself[8] that the median rental for a two bedroom unit with one bathroom, which this unit is, is currently $470 per week in Surfers Paradise.[9][7]See the Form 18a General Tenancy Agreement filed in these proceedings.[8]As permitted by section 28(3)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).[9]See realestate.com.au, suburb profile for Surfers Paradise, Queensland updated as at November 2018 and Tribunal Exhibit marked T1.

Evidence

Evidence Before The Court

I am supported in that conclusion by the fact that section 419 of the RTRAA gives a lessor or tenant the right to apply to the Tribunal for an order about the breach of an agreement as does section 429 for an order in a general dispute between lessor and tenant. By section 35A of the Acts Interpretation Act 1954 (Qld), reference to a lessor in an Act includes reference to a lessor’s personal representative. Though not defined in the RTRAA, a personal representative includes a statutory agent (the agent in this case) in my opinion. Section 4 of the Act provides that a person’s right or remedy under the RTRAA is in addition to, not in substitution for, a right or remedy the person would have apart from the Act. It seems to me that common law and other statutory rights and remedies (including for contribution or indemnity) available to a lessor, agent or tenant therefore co-exist with rights under the Act unless inconsistent.Evidence By reference to an expanded list of complaints attached to the application, Ms Champion and Dr Daunter gave the following evidence at the hearing:[19][19]See pages 1 and 2 of the attachment to Application T1113/18 and their oral evidence generally.(a)Throughout the first lease and for most of the second lease, they were without a key to the outside lockable mailbox for the premises. The agent only supplied the key on 22 July 2018,[20] a mere four days before the second lease ended by agreement. They did not lose any mail.[20]T1-4 lines 40 to 47 and T1-5 lines 1 to 18.(b)Throughout the first lease and the second lease, a security light along the pathway to the stairwell did not work and was never replaced.[21] They did not suffer any loss or injury.[21]T1-5 lines 41 to 46 and T 1-6 lines 1 to 5.(c)Throughout the first lease and the second lease, the security door for stairwell access to the building was damaged and eventually became detached. It was neither repaired nor replaced.[22] They did not suffer any loss.[22]T1-6 lines 15 to 45 and T1-7 lines 1 to 10.(d)Throughout the first lease and the second lease, the security door for access to internal garages 3, 6 and 9, was broken and left open, supported by a brick. Some internal garages, but not the garage allocated to Ms Champion and Dr Daunter, were entered[23] by criminals who stole property.[24] However they did not suffer any loss.[23]T1-7 lines 30 to 36.[24]See T1-7 from line 20 to T1-11 to line 40.(e)Throughout the first lease and the second lease, stairwell lights on some floors were missing. Where other stairwell lights were in place and working, they did not stay on long enough for a person to climb the stairs completely.[25] Ms Champion slipped one night but saved herself by grabbing the handrail. She was not injured in the process.[26][25]T1-11 lines 40 to 48 and T1-12 lines 1 to 31.[26]T1-12 lines 1 to 24.(f)Throughout the first lease and the second lease, the stairwell was never cleaned. Windblown debris accumulated. Wet leaves became slippery under foot.[27] However neither Ms Champion and Dr Daunter suffered any associated loss or injury.[27]T1-12 lines 33 to 38.(g)Throughout the first lease and the second lease, rain penetration made the stairwell steps slippery under foot because the stairwell windows could not be closed.[28] They suffered no loss or injury.[28]T1-13 lines 1 to 5.(h)Throughout the first lease and the second lease, landing floor tiles were broken in one place. Some tiles were separating and lifting from the concrete base at the entrance to the premises.[29] They suffered no loss or injury.[29]T1-13 lines 7 to 11.(i)Throughout the first lease and the second lease, the external part of the metal door frame at the entrance to the premises was rusted. The paint was peeling off. That was aesthetically displeasing. However the weather did not penetrate internally.[30] They suffered no loss.[30]T1-13 lines 13 to 37.(j)The lock on the security screen door to the premises ceased working in about June 2017 but it was fixed approximately six months later in December 2017 or thereabouts.[31] They suffered no loss.[31]T1-14 lines 1 to 44.(k)In or about June 2018, the kitchen light ceased working and Ms Champion had to use a desk lamp for food preparation, however it was replaced by July 2018 after notice.[32] Other than inconvenience and some concern for safety, she suffered no loss.[32]T1-16 lines 1 to 14.(l)Throughout the first lease and the second lease, wall architraves were progressively separating from the ceiling in the kitchen and bathroom[33] with separation cracks increasingly visible. They suffered no loss.[33]T1-16 lines 16 to 46, T1-17, lines 1 to 46 and T1-18, lines 1 to 47.(m)Throughout the first lease and the second lease, floor tiles in the living area and corridor were cracked, flaking, lifting and disintegrating with grout breaking up.[34] They suffered no loss.[34]T1-19 lines 1 to 20.(n)Throughout the first lease and the second lease, some floor tiles by the sliding door to the balcony were crumbling into powder and the balcony floor tiles themselves were cracked, flaking, lifting and disintegrating with grout break up.[35] However they suffered no loss.[35]T1-19 lines 21 to 24(o)During the first lease, though not at the start, and throughout the second lease, a chunk of the concrete slab on the underside of the balcony[36] was broken off. Ms Champion and Dr Daunter say that they did not use the balcony because it felt unsafe to them.[37](p)Throughout the first lease and the second lease, the bathroom window was bowed which caused wall tiles to separate and allowed water to leak into the tenancy below[38] but not into the premises leased by Ms Champion and Dr Daunter. They suffered no loss.(q)One end of the bath dropped which caused a misalignment with the waste pipe resulting in some water leaking and accumulating under the bath with the potential eventually to leak into the unit below as well,[39] however there was no functional consequence for Ms Champion and Dr Daunter because the water did not need to be mopped. They suffered no loss.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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