Duncan v Friend

Case [2023] QCATA 63

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Duncan v Friend [2023] QCATA 63

PARTIES:

JARROD DUNCAN

(applicant/appellant)

v

MELISSA JOY FRIEND

(respondent)

APPLICATION NO/S:

APL136-22

ORIGINATING APPLICATION NO/S:

MCDT328-22

MATTER TYPE:

Appeals

DELIVERED ON:

9 May 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Lumb

ORDERS:

1.     Leave to appeal is granted in relation to Ground 2 of the Application for leave to appeal or appeal.

2.     Leave to appeal is otherwise refused.

3.     The appeal is dismissed.

CATCHWORDS:

APPEAL – GENERAL PRINCIPLES – leave to appeal – minor civil dispute – residential tenancy dispute – where claim by tenant for rent reduction because of state of premises in the course of repair work – where loss of amenity temporary – whether application for rent reduction under s 94 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) could be brought after restoration of amenity – whether compensation available under s 419 of the Act

Acts Interpretation Act 1954 (Qld), s 14
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 39, s 142
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 94, s 185, s 206, s 284, s 419

Berry v Treasure & Anor [2021] QCATA 61
Bourke v Kenjad Rentals [2019] QCATA 81
Cain v Daudet [2020] QCATA 78
Challands & Anor v Jackson [2014] QCATA 330
Champion & Anor v Laterma Pty Ltd & Ors [2018] QCAT 392
Gould v Mazheiko & Gill [2020] QCATA 10
Hurst v Pyatt [2017] QCATA 101
Keith Bannister v David and Mariam Cheung [2014] NSWCATCD 105
McKinnon v Kirdy [2003] QSC 302

Savage Resorts Pty Ltd v Maksymiuk [2016] QCATA 184

Saxer v Hume [2022] QCATA 25
Underwood v Queensland Department of Communities (State of Queensland) [2013] 1 Qd R 252

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

Introduction

  1. By an Application for leave to appeal or appeal filed on 20 May 2022 (the Appeal Application), the Applicant (Mr Duncan) seeks leave to appeal, and to appeal, a decision made by the Queensland Civil and Administrative Tribunal (the Tribunal) on 27 April 2022 (the Decision).

  2. The Decision was made in a proceeding commenced by the Respondent to the Appeal Application (Ms Friend) by an Application for minor civil dispute – residential tenancy dispute filed on 21 March 2022 (the MCD Application). The Respondent to the MCD Application was Ms Lauren Cathcart, who was the agent for Mr Duncan, the landlord of the leased residential premises the subject of the MCD Application (the premises).

  3. In the MCD Application, Ms Friend claimed the following amounts: Rent (8 days) of $628.56; loss of wages (4 days) of $1,107.69; ‘Water Bill’ of $134.78, ‘Compensation till wk [sic] was finished’ by way of ‘rent reduction’, and recovery of ‘lodgement fees’. At the hearing, Ms Friend also raised a claim for $100.00 said to have been agreed to on behalf of Mr Duncan as an offsetting charge based on the electricity used by machines utilised in repair works carried out…

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Details
AGLC
Duncan v Friend [2023] QCATA 63
Case
[2023] QCATA 63
Decision Date

CaseChat Overview and Summary

In the case of Duncan v Friend, the dispute arose in the context of a residential tenancy in Queensland, with the tenant seeking a reduction in rent due to the condition of the premises during a period of repairs. The matter was ultimately heard in the Queensland Civil and Administrative Tribunal (QCAT). The central legal issue revolved around the interpretation of section 94 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld), specifically whether the application for rent reduction could be made after the restoration of the premises' amenity. Additionally, the court considered whether compensation under section 419 of the Act was available in these circumstances.

The tribunal carefully examined the statutory language and structure of the Act, along with relevant case law. The tribunal noted that previous decisions, such as Gould v Mazheiko & Gill and Hurst v Pyatt, had established that section 94 permits a prospective reduction in rent while the tenancy continues or until the loss of amenity is restored. This interpretation was supported by the fact that section 94 is worded in the present and future tense, and there is no provision allowing retrospective applications, unlike section 419. The tribunal also highlighted the distinction between rent reduction, which is intended to be temporary and prospective, and compensation, which is a separate remedy under the Act. Based on these considerations, the tribunal concluded that the application for rent reduction must be made during the tenancy.

Consequently, the tribunal granted leave to appeal only in relation to Ground 2 of the Application for leave to appeal or appeal, otherwise refused leave, and dismissed the appeal. This decision underscores the importance of the timing of applications for rent reduction under the Act and reaffirms the distinction between rent reduction and compensation.

Orders

Orders of the court

1. Leave to appeal is granted in relation to Ground 2 of the Application for leave to appeal or appeal.

2. Leave to appeal is otherwise refused.

3. The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In Gould v Mazheiko & Gill,[18] Justice Daubney, President, said:[18][2020] QCATA 10, [15]-[19].[15] In Hurst v Pyatt, Member Hughes was not satisfied that s 94 permits a ‘retrospective’ rent reduction. Member Hughes referred to Campbell v Donker, where the Appeal Tribunal had previously held that s 94 permits a decrease of rent for a specific amount, rather than lump sum compensation calculated by the amount of the rent reduction and the period of time over which the amenity or the standard of the premises is decreased. Member Hughes interpreted this to mean: In other words, s 94 only operates prospectively to allow a tenant to apply for a reduction in their rent while the tenancy continues or until the Lessor restores the loss of amenity. [16] In Champion, Adjudicator Alan Walsh agreed with this proposition and referred to the fact that s 94 is worded in the present and future tense, and not in the past tense, as further support. Adjudicator Walsh also placed weight upon the fact that s 94 is unaccompanied by a provision such as that in s 419 stating that the application for rent reduction might be made after the end of the agreement. Adjudicator Walsh was clearly referring to s 419(4)(a), which states that an application for an order under s 419 may be brought during the term, or after the end, of the agreement. He said: If the legislature had intended that an application for rent reduction could be filed after the end of a tenancy, months or years later, i.e. after discharge of the statutory tenancy contract by operation of law, it would have said so in the Act but did not. [17] In Bourke v Kenjad Rentals, Carmody J reached the conclusion that the tenant must apply for a rent decrease during the tenancy. His Honour contrasted the purpose of the monetary compensation regime under ss 419 and 420 with rent relief under s 94, stating that the former provides a legal remedy for non-performance of breach of tenancy obligations regardless of loss of enjoyment, while rent reduction focusses on fairness not fault and derives from the restitutionary theory of unjust enrichment and the equitable doctrine of abatement, not the law of compensation. His Honour considered that rent reduction is intended to be prospective and temporary. The rent payable decreases to reflect the diminished amenity or standard of the premises, pending their remedy. He said that ‘although it is not time limited, the right to apply [for a rent reduction] logically lapses with the obligation to pay rent’.[18] I would respectfully align myself with the latter view. In addition to the reasons given by the learned members in the decisions cited above, I would further add that, as a matter of logic, applications under s 94 must be limited to being made during the tenancy. The legislative intention to limit compensation claims to 6 months is clear. It cannot have been the legislature’s intention to provide a means by which the strict time limit under s 419 can be so easily subverted.[19] Looking to the structure of the RTRA Act, s 94’s position in Chapter 2, Part 2 – Rent, Division 1 – Residential tenancy agreements would tend to support the view that it is intended to be used during the currency of the agreement. Certainly, a failure to comply with s 94 could amount to a breach actionable under s 419, as many other provisions within this chapter can, but it would then be subject to the s 419 limit.(citations omitted, emphasis added)

Ratio Decidendi

Legal Principle Established

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