Copping v Property Central Australia Pty Ltd

[2014] QCATA 187

CITATION: Copping v Property Central Australia Pty Ltd [2014] QCATA 187

PARTIES:	Stephen Copping Elizabeth Copping (Applicant/Appellant)
v
Property Central Australia Pty Ltd (Respondent)

APPLICATION NUMBER: APL239-14

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Stilgoe, OAM

DELIVERED ON: 30 June 2014

DELIVERED AT: Brisbane

ORDERS MADE:

1.    Leave to appeal granted.

2.    Appeal allowed.

3.    The decision of 288[1] April 2014 is set aside.  

4.    Property Central Australia Pty Ltd shall file and serve copies of all original water charge invoices, together with any submissions as to what is a reasonable water charge, by 21 July 2014.

5.    Stephen and Elizabeth Copping may file submissions as to what is a reasonable water charge by 4 August 2014.

6.    If Property Central Australia Pty Ltd does not file and serve copies of the water invoices by 21 July 2014, it shall pay Stephen and Elizabeth Copping $3,072.20 by 4 August 2014.

7.    The application, to the extent that it relates to a claim for the refund of water charges paid, be remitted to the tribunal for a determination.

8.    The tribunal will determine that amount on the papers filed in the tribunal and without oral submissions.

[1]Decision amended by order of the Tribunal on 28 October 2014.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where property not water efficient – where charges for water consumption – where tenant claimed refund for water charges – where tribunal found water charges were reasonable – whether grounds for leave to appeal

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 166(4), 419(3)

Pickering v McArthur [2005] QCA 294

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 (Qld) (QCAT Act).

REASONS FOR DECISION

1. Mr and Ms Copping rented a property through Property Central Australia Pty Ltd. At the end of the tenancy, they filed an application asking for, among other things, a refund of water charges they paid. Two Justice of the Peace, sitting in the minor disputes jurisdiction of the tribunal, found that the water charges were reasonable and declined to order that Property Central refund the Coppings.

2. The Coppings want to appeal that decision. They say that they should not have to pay for water if the premises are not water efficient. They say that in that case the lessor, not the tenant, must pay for the reasonable water charges.

3. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[2]  Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[3]

   [2]QCAT Act s 142(3)(a)(i)).

   [3]Pickering v McArthur [2005] QCA 294 at [3] per Keane JA.

4. Section 166(4) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) states that, if premises are not water efficient, the tenant may only be required to pay an amount for consumption charges that is more than the amount payable for a reasonable quantity of water supplied.

5. The Coppings signed two tenancy agreements. The first tenancy agreement included a term that 25 kilolitres per month was a reasonable allocation of water for the tenancy and that any consumption over this amount would be charged at $1.16 per kilolitre. During the period of this tenancy, the Coppings were not charged for water.

6. The parties signed a new tenancy agreement in April 2011. Property Central argued that, under this agreement, the Coppings had to pay all water charges. In fact, clause 17, which referred to water charges, simply reflected the position under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). Even under the new tenancy agreement, unless the tenancy was water efficient, the Coppings only had to pay excess water charges.

7. The learned Justices found that the premises were not water efficient, and that the charging involved a consideration of what was reasonable, but they erred in finding, contrary to s 166(4), that the lessor could claim reasonable water charges. Leave to appeal should be granted and the appeal allowed. The decision of 288[4] April 2014 should be set aside.

   [4]Reasons amended by order of the Tribunal on 28 October 2014.

8. Because Property Central did not apply for leave to appeal, the learned Justices’ finding that the property was not water efficient stands.

9. The Coppings found out that the property was not water efficient when they received the report from Fair Dinkum Plumbing Services on or about 4 October 2013. I am satisfied that they made an application for breach of the tenancy agreement within six months of becoming aware of the breach.[5]

   [5]Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 419(3).

10. The Coppings have claimed repayment of all their water charges. They are not entitled to that, because they have to pay for excess water. Property Central did not provide copies of the actual water accounts, only invoices. The tribunal has no information by which it can assess what is a reasonable water charge to enable the tribunal to properly consider the Coppings’ claim. Those invoices will provide a guide to what is a reasonable charge for water. I direct:

    a)    Property Central shall file and serve copies of all original water charge invoices, together with any submissions as to what is a reasonable water charge, by 21 July 2014.

    b)    Stephen and Elizabeth Copping may file submissions as to what is a reasonable water charge by 4 August 2014.

    c)    If Property Central does not file and serve copies of the water invoices by 21 July 2014, it shall pay Stephen and Elizabeth Copping $3,072.20 by 4 August 2014.

    d)    The application will be remitted to the tribunal for a determination of the amount refundable to the Coppings. The tribunal will determine that amount on the papers filed in the tribunal and without oral submissions.