Esposito v Hills - [2017] QCATA 126

CITATION:	Esposito v Hills [2017] QCATA 126
PARTIES:	Roxanne Esposito (Appellant)
v
Nar’dine Jane Hills (Respondent)
APPLICATION NUMBER:	APL242-17
MATTER TYPE:	Appeals
HEARING DATE:	13 November 2017
HEARD AT:	Southport
DECISION OF:	Member Howe
DELIVERED ON:	23 November 2017
DELIVERED AT:	Brisbane
ORDERS MADE:	1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 11 July 2017 is set aside. 4. The matter is returned to the tribunal for reconsideration with the hearing of such additional evidence as deemed necessary by the tribunal.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where tenant lived adjacent to another building being renovated – where compensation claimed for loss of “enjoyment” – where the tribunal apparently decided the matter on basis of loss of quiet enjoyment – whether claim one of loss of amenity – where failure to consider lessor contribution to tenant’s loss of quiet enjoyment Queensland Civil and Administration Tribunal Act 2009 (Qld), s 142(3)(a)(i) Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 52, s 94, s 183, s 420(1)(e) Pickering v McArthur [2005] QCA 294
APPEARANCES:

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

Ms Hills took up a tenancy of a unit at Southport on 12 December 2016. She vacated it on 10 July 2017. Shortly after viewing the unit in anticipation of renting it, and before she signed a residential tenancy agreement, there was an explosion in an adjacent building which damaged a number of units in the complex where Ms Hills’ unit was.
Workmen started doing repair work at the adjacent property shortly after Ms Hills moved in and she found their presence and the noise they made disquieting. The noise woke her at about 7am every morning and that was troublesome. Ms Hills said she was a chef.
The tenancy was for 6 months and Ms Hills was given notice to leave to be effective as at or about the end of the 6 months.
Prior to vacating Ms Hills made an application to the tribunal seeking an extension of time of the tenancy to 12 months and also seeking $1,800 compensation for disruption by tradesmen constantly entering the building to remedy damage caused by the explosion in the building next door.
At hearing the tribunal took evidence from both Ms Hills and Ms Esposito, the lessor’s agent. The tribunal ordered the agent pay Ms Hills $1,800 compensation on the basis the tenant had suffered loss of “enjoyment of sleep and other enjoyments”.[1] No order was made concerning the claim for an extension of time of the tenancy agreement. The matter of an extension of time was not pursued at hearing. The tenant had vacated by the date of hearing.
[1]Transcript (T)1-27 Line 16.
Ms Esposito has sought leave to appeal the decision. Given this is…

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.

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Details

Case: [2017] QCATA 126
Decision Date: 23 November 2017

CaseChat Overview and Summary

The appeal before the court involved Esposito, the appellant, and Hills, the respondent, concerning a dispute related to the loss of "quiet enjoyment" due to renovation works conducted by the respondent. The case was originally heard in the Civil and Administrative Tribunal of New South Wales. Esposito sought compensation for the disturbance caused by the renovation works which were carried out on a building adjacent to his rented premises. The primary issue before the court was whether the tribunal had erred in its consideration of the type of compensation Esposito was entitled to claim. Specifically, the court needed to determine whether the tribunal had correctly identified the nature of Esposito’s claim as one for loss of quiet enjoyment rather than loss of amenity, and whether it had adequately assessed the contribution of the respondent to Esposito’s loss of quiet enjoyment.

The court held that the tribunal had indeed erred in its assessment of the claim. It was determined that the tribunal had failed to consider the distinction between a claim for loss of quiet enjoyment and a claim for loss of amenity, and had not properly evaluated the extent of the respondent’s contribution to the loss of quiet enjoyment. The court concluded that these errors amounted to a failure to properly apply the relevant legal principles and warranted the setting aside of the tribunal’s decision. The appeal was thus allowed, and the decision of 11 July 2017 was set aside. The matter was remitted to the tribunal for reconsideration, with the tribunal being directed to hear any additional evidence it deemed necessary.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal allowed.

3. The decision of 11 July 2017 is set aside.

4. The matter is returned to the tribunal for reconsideration with the hearing of such additional evidence as deemed necessary by the tribunal.

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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