QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Define Property Agents v Sanderson [2021] QCATA 129
PARTIES: DEFINE PROPERTY AGENTS and PIOTR SWIERKOWSKI (applicants/appellants)
v
MARK SANDERSON and ELIZABETH SANDERSON (respondents)
APPLICATION NO/S:
APL160-20; APL105-21
ORIGINATING APPLICATION NO/S:
MCDT153-19; MCDT303-20
MATTER TYPE:
Appeals
DELIVERED ON:
1 November 2021
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Judicial Member D J McGill SC
ORDERS:
In APL160-20:
1. Leave to appeal on condition that the appeal be limited to the ground that the Member erred in ordering a decrease in rent from prior to the time that the respondents are taken to have made application to the Tribunal.
2. Appeal allowed in part, by deleting the date “19March 2019” in paragraph 5 of the decision of the Tribunal of 19 May 2020 and inserting in its place the dte “16 August 2019”, and by adding at the end “in the sum of $6,925 to the date of this decision.”
3. Appeal otherwise dismissed.
In APL105-21:
4. Leave to appeal from the decision of the Tribunal of 17 February 2021.
5. Appeal allowed in part, by setting aside paragraph 3 of that decision.
6. Appeal otherwise dismissed.
There be no order as to costs in either appeal, unless a party files and serves on the other party within 14 days from this decision submissions in writing setting out the order sought, and the reasons why such order should be made.
CATCHWORDS:
LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – OTHER MATTERS – rent abatement for less of amenity – from when can abatement be ordered – effect of order – application for leave to appeal – matters not raised at hearing.
Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 94, s 417.
Carney v Home Rentals Queensland [2020] QCATA 119
Champion v Laterma Pty Ltd [2018] QCAT 392
Gould v Mazheiko [2020] QCATA 10
L J Hooker Stafford v Roberts [2020] QCATA 94
Leddicoat v Walker [2010] QCATA 18
Pedersen v Bradshaw [2021] QCATA 102
Vloedmans v Malseed [2014] QCATA 174
Water Board v Moustakas (1988) 180 CLR 491APPEARANCES & REPRESENTATION:
Applicants:
Miller Sockhill Lawyers
Respondents:
Self-represented
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
On 11 November 2019 the respondents filed in the Tribunal an Application for minor civil dispute – residential tenancy dispute, naming the first appellant[1] as the respondent. They sought orders under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (“the Act”), under s 191 for the lessor to remedy by repairs a failure to comply with maintenance obligations, under s 94, seeking a rent reduction from 15 January 2019 until the repairs were completed, and an order for reimbursement of a payment for power usage dated 17 April 2019.[2] The matter was heard by a Member on 3 February 2020, and there was a short further hearing on 25 February 2020. The Member made a decision on…
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- AGLC
- Define Property Agents v Sanderson [2021] QCATA 129
- Case
- [2021] QCATA 129
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining the extent to which the tribunal could retroactively order a reduction in rent for diminished amenity and the implications of such an order. Specifically, the court had to decide whether the tribunal erred in setting the date from which the abatement should be applied, and if the appeal was valid despite some issues not being raised during the initial tribunal hearing. The court also needed to address the impact of these decisions on the final orders made by the tribunal.
The court found that the tribunal did indeed have the power to order a rent abatement from a date prior to the tenant's application, but it had erred in setting the commencement date for the abatement. The court limited the grounds for appeal to this specific issue, allowing the appeal in part by amending the date of the abatement to correctly reflect the date from which it should apply. The court also set aside a specific paragraph of the tribunal's decision, while dismissing other aspects of the appeal. The court concluded that no order for costs would be made unless a party submitted written submissions within 14 days of the decision.
Orders
Orders of the court
In APL160-20:
1. Leave to appeal on condition that the appeal be limited to the ground that the Member erred in ordering a decrease in rent from prior to the time that the respondents are taken to have made application to the Tribunal.
2. Appeal allowed in part, by deleting the date “19March 2019” in paragraph 5 of the decision of the Tribunal of 19 May 2020 and inserting in its place the dte “16 August 2019”, and by adding at the end “in the sum of $6,925 to the date of this decision.”
3. Appeal otherwise dismissed.
In APL105-21:
4. Leave to appeal from the decision of the Tribunal of 17 February 2021.
5. Appeal allowed in part, by setting aside paragraph 3 of that decision.
6. Appeal otherwise dismissed.
There be no order as to costs in either appeal, unless a party files and serves on the other party within 14 days from this decision submissions in writing setting out the order sought, and the reasons why such order should be made.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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