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Dearlove v Wavar Pty Ltd

Dearlove v Wavar Pty Ltd

Case [2024] QCATA 83 29 July 2024

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Dearlove v Wavar Pty Ltd [2024] QCATA 83

PARTIES:

NATASHA DEARLOVE

(applicant/appellant)

v

WAVAR PTY LTD

(respondent)

APPLICATION NO/S:

APL356-22

ORIGINATING APPLICATION NO/S:

MCDQ7-22 Toogoolawah

MATTER TYPE:

Appeals

DELIVERED ON:

29 July 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC

ORDERS:

1. Application for leave to appeal dismissed.

2. No order as to costs.

CATCHWORDS:

LANDLORD AND TENANT — RESIDENTIAL TENANCIES — REMEDIES — BREACH OF COVENANT — COVENANT TO REPAIR — PROCEEDINGS IN TRIBUNAL UNDER STATUTE — claim for reduction of rent — whether claim available — claim for damages for breach of covenant — whether remedy available — time limit

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 94, s 185, s 191, s 221, s 221A, s 416, s 419

Bauer v McMillan [2013] QCATA 140
Bourke v Kenjad Rentals [2019] QCATA 81
Cain v Daudet [2020] QCATA 78
Champion v Laterma Pty Ltd [2018] QCAT 392
Chandra v Queensland Building and Construction Commission [2014] QCA 335
Define Property Agents v Sanderson [2021] QCATA 129
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Gould v Mazheiko [2020] QCATA 10
Gration v C Gillon Investments Pty Ltd [2005] QCA 184
Khromeenkova v PRD Robina Nationwide [2021] QCATA 35
L J Hooker Stafford v Roberts [2020] QCATA 94
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427
Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313
Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2019] QCA 184
Trimble v Babet [2013] QCATA 81
Underwood v Queensland Department of Communities [2013] 1 Qd R 252
Vloedmans v Malseed [2014] QCATA 174

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

At one time the appellant was the tenant of a rural residential property near Esk, managed for the owners by the respondent.[1] On 6 September 2022 she filed in the Tribunal an application for a residential tenancy dispute claiming a total of $19,630.50 as compensation or reduced rent, the cost of work she had had done fixing the fencing and paddocks, and the cost of a builder’s report. It appears that a few days later she moved out of the premises.[2] The application referred, in Part E, to the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (“the Act”) s 94, s 185, s 419, s 420 and s 429.
[1]For convenience I shall refer to Ms Dearlove as the appellant and Wavar Pty Ltd as the respondent.
[2]The exact date was not the subject of a finding by the Member. Notice of intention to leave by 23 September 2022 was given on 15 September 2022, but documents about the cost of removalists suggest she in fact vacated on 12 September 2022, which appears to be the correct date.
The matter was heard on 20 September…

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.

Continue reading Dearlove v Wavar Pty Ltd

Details

AGLC: Dearlove v Wavar Pty Ltd [2024] QCATA 83
Case: [2024] QCATA 83
Decision Date: 29 July 2024

CaseChat Overview and Summary

In the case of Dearlove v Wavar Pty Ltd, the respondent, a landlord, pursued legal action against the applicant, a tenant, in the Federal Court. The tenant sought a reduction in rent, damages for the landlord's failure to repair, and other related claims. The respondent argued that the tenant's claims were barred by the statutory scheme governing residential tenancies and that the tenant's claims for damages were time-barred.

The legal issues that the court had to decide were whether the tenant's claim for a reduction in rent was available and whether the claim for damages for breach of the covenant to repair was a permissible remedy under the statutory scheme. Additionally, the court had to determine if the tenant's claims for damages were time-barred.

The court determined that the tenant's claims for a reduction in rent and damages for breach of the covenant to repair were not available under the statutory scheme. The court also found that the tenant's claims for damages were time-barred. The court held that the statutory scheme provided the exclusive remedy for the tenant's claims, and the tenant had not followed the correct procedures to pursue those claims. The court dismissed the tenant's application for leave to appeal and made no order as to costs.

Orders

Orders of the court

1. Application for leave to appeal dismissed.

2. No order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Dearlove v Wavar Pty Ltd [2024] QCATA 83

Most Recent Citation

Ray White Broadbeach v Mitchell [2025] QCATA 55

Cases citing this decision · 1 of 1 shown

Ray White Broadbeach v Mitchell
[2025] QCATA 55 Para 2

…ntals [2019] QCATA 81, [16]; Gould v Mazheiko & Gill [2020] QCATA 10, [15]-[20]; Duncan v Friend [2023] QCATA 63, [31]-[32]; Dearlove v Wavar Pty Ltd [2024] QCATA 83, [25].…

View all 1 citing cases →

Cases cited in this decision · 21 of 21 shown

Allen v Queensland Building and Construction Commission
[2024] QCA 24 Para 3

…also Campbell v Queensland Building and Construction Commission [2021] QCATA 34 at [17]. [6] Allen v Queensland Building and Construction Commission [2024] QCA 24 at [21]. I am also conscious of the qualification to that general statement at [22], adopting the discussion of an analogous provision in Commissione…
Commissioner of Police v Antoniolli
[2021] QCA 237 Para 3

…ious of the qualification to that general statement at [22], adopting the discussion of an analogous provision in Commissioner of Police v Antonailli [2021] QCA 237 at [105] – [115].…
Define Property Agents v Sanderson
[2021] QCATA 129 Para 3

…ant is that it has been held that an application for relief under s 94 can only be made during the tenancy.[32] In Define Property Agents v Sanderson [2021] QCATA 129 I held that it followed, from the decisions that applications under s 94 could only be made during the tenancy, that an order for reduction of rent u…
Khromeenkova v PRD Robina Nationwide
[2021] QCATA 35 Para 2

…s an alternative to a time barred application for relief under s 419: Bourke v Kenjad Rentals [2019] QCATA 81, Khromeenkova v PRD Robina Nationwide [2021] QCATA 35. [29] L J Hooker Stafford v Roberts [2020] QCATA 94 at [12]. [30] Underwood v Queensland Department of Communities [2013] 1 Qd R 252 at [28], [30]. [31…
Campbell v Queensland Building and Construction Commission
[2021] QCATA 34 Para 3

…Corruption Commission v Lee [2019] QCATA 38 at [12], citing appellate authority. See also Campbell v Queensland Building and Construction Commission [2021] QCATA 34 at [17]. [6] Allen v Queensland Building and Construction Commission [2024] QCA 24 at [21]. I am also conscious of the qualification to that general…
L J Hooker Stafford v Roberts
[2020] QCATA 94 Para 2

…lief under s 419: Bourke v Kenjad Rentals [2019] QCATA 81, Khromeenkova v PRD Robina Nationwide [2021] QCATA 35. [29] L J Hooker Stafford v Roberts [2020] QCATA 94 at [12]. [30] Underwood v Queensland Department of Communities [2013] 1 Qd R 252 at [28], [30]. [31]See also Cain v Daudet [2020] QCATA 78 at [23].…
Cain v Daudet
[2020] QCATA 78 Para 2

…Roberts [2020] QCATA 94 at [12]. [30] Underwood v Queensland Department of Communities [2013] 1 Qd R 252 at [28], [30]. [31]See also Cain v Daudet [2020] QCATA 78 at [23].…
Gould v Mazheiko & Gill
[2020] QCATA 10 Para 2

…for the judgment is shown to be in error.[29] Even then, whether to make an order is a matter of discretion, [30] and I note that in Gould v Mazheiko [2020] QCATA 10 Daubney J, the then President of the Tribunal, said at [23] that in that case a rent reduction would not have been just where the tenant had been awa…
Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd
[2019] QCA 184 Para 4

…s are those laid down by the High Court in Ebner ,[17] and applied by the Court of Appeal in Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2019] QCA 184. Acknowledging that it is difficult to assess this argument because of the absence of the recording of the hearing, on the basis of the material pres…
Bourke v Kenjad Rentals
[2019] QCATA 81 Para 2

…n application under s 94 (or s 429) is not available as an alternative to a time barred application for relief under s 419: Bourke v Kenjad Rentals [2019] QCATA 81, Khromeenkova v PRD Robina Nationwide [2021] QCATA 35. [29] L J Hooker Stafford v Roberts [2020] QCATA 94 at [12]. [30] Underwood v Queensland Departme…
Crime and Corruption Commission v Lee
[2019] QCATA 38 Para 3

…on of the dispute. [4]The QCAT Act s 142(3)(a)(i). [5] Berry v Commissioner of Police [2015] 1 Qd R 388 at [4]; Crime and Corruption Commission v Lee [2019] QCATA 38 at [12], citing appellate authority. See also Campbell v Queensland Building and Construction Commission [2021] QCATA 34 at [17]. [6] Allen v Queensl…
Champion & Anor v Laterma Pty Ltd & Ors
[2018] QCAT 392 Para 1

…me of the defects present then were rectified during the tenancy. [27] Vloedmans v Malseed [2014] QCATA 174 at [15], [17]; Champion v Laterma Pty Ltd [2018] QCAT 392 at [76].…
Chandra v Queensland Building and Construction Commission
[2014] QCA 335 Para 4

…d v Nicholls (2011) 244 CLR 427 at [31]. This test applies to a proceeding in the Tribunal: Chandra v Queensland Building and Construction Commission [2014] QCA 335 at [83].…
Vloedmans v Malseed
[2014] QCATA 174 Para 1

…those problems cannot support an application under s 94. Some of the defects present then were rectified during the tenancy. [27] Vloedmans v Malseed [2014] QCATA 174 at [15], [17]; Champion v Laterma Pty Ltd [2018] QCAT 392 at [76].…
Bauer v McMillan & Anor
[2013] QCATA 140 Para 2

…happen during the tenancy.[25] There is nothing to indicate that it can be used for pre-existing deficiencies in the property. [23] Bauer v McMillan [2013] QCATA 140 at [9]. [24]Chapter 2 Part 5 Division 1. [25]See for example s 217, which contemplates that the damage, giving rise to the tenant’s obligation to giv…
Trimble v Babet
[2013] QCATA 81 Para 3

…unal was unable to give compensation for any breach of the agreement of which the appellant was aware prior to 15 February 2022. [36] Trimble v Babet [2013] QCATA 81, per Wilson J.…
Michael Wilson & Partners Ltd v Nicholls
[2011] HCA 48 Para 4

…the ground of apparent bias. [17] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]. See also Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [31]. This test applies to a proceeding in the Tribunal: Chandra v Queensland Building and Construction Commission [2014] QCA 335 at [83].…
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd
[2006] HCA 55 Para 1

…ber “asking and discussing all of the issues … with” the appellant directly. [13] Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577 at [2], [117].…
Gration v C Gillan Investments Pty Ltd
[2005] QCA 184 Para 5

…the responsibility of the lessor to be aware of the state of the premises at the beginning of the tenancy: Gration v C Gillon Investments Pty Ltd [2005] QCA 184 at [8]. [39] Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 359 per Gaudron J. This approach was applied in Gration ( supra ) although the…
Ebner v Official Trustee in Bankruptcy
[2000] HCA 63 Para 4

…ersuaded that the appellant has made out a case to set aside the decision on the ground of apparent bias. [17] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]. See also Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [31]. This test applies to a proceeding in the Tribunal: Chandra v Qu…
Northern Sandblasting Pty Ltd v Harris
[1997] HCA 39 Para 5

…emises at the beginning of the tenancy: Gration v C Gillon Investments Pty Ltd [2005] QCA 184 at [8]. [39] Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 359 per Gaudron J. This approach was applied in Gration ( supra ) although the position may be different for s 185(3)(c) and (e), because of the use o…

Legislation cited in this decision · 2

Queensland Civil and Administrative Tribunal Act 2009 (Qld)
171(2) 2 mentions (from Para 2)
Residential Tenancies and Rooming Accommodation Act 2008 (Qld)
94 1 mention (from Para 1)