Fitz-Gerald v Turley
[2011] QCATA 269
•16 September 2011
| CITATION: | Fitz-Gerald v Turley [2011] QCATA 269 |
| PARTIES: | Mrs Wendy Anne Fitz-Gerald |
| v | |
| Ms Lynn Turley |
APPLICATION NUMBER: APL076-11
| MATTER TYPE: | Appeals |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Peta Stilgoe, Acting Senior Member |
DELIVERED ON: 16 September 2011
DELIVERED AT: Brisbane
ORDERS MADE: 1. Leave to appeal granted.
2.Appeal allowed
The decision of 20 December 2010 is set aside and the following order is substituted: Ms Turley pay Mrs Fitz-Gerald $1,119.50 within 21 days of the date of this order.3.
| CATCHWORDS: | MINOR CIVIL DISPUTE – TENANCY – where overseas student terminated without notice – whether reliance on representation about other residents – whether breach of obligation to give quiet enjoyment – whether grounds for leave to appeal Aussie Traveller Pty Ltd v Marklea Pty Ltd [1997] QCA 2 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Mrs Fitz-Gerald owns a house close to Griffith University. She rents out rooms in the house, usually to overseas students. While resident abroad, Ms Turley negotiated a fixed term twelve month tenancy agreement via the internet. The agreement commenced on 1 June 2010. She moved in on 6 June 2010 and moved out on 10 June 2010. On the day she moved out, Ms Turley sent Mrs Fitz-Gerald an email stating that she had decided to move out because of the “constant traffic noise right outside my bedroom window.”
Mrs Fitz-Gerald brought an application in the tribunal for compensation for the early termination of the lease. The learned Adjudicator found that Ms Turley was entitled to terminate the lease and dismissed Mrs Fitz-Gerald’s claim.
Mrs Fitz-Gerald has appealed the learned Adjudicator’s decision on these grounds:
a) There was a denial of natural justice because Mrs Fitz-Gerald was not given an opportunity to respond to Ms Turley’s submissions.
b) There was an error of fact because the learned Adjudicator found that Ms Turley was an international student visiting Australia for the first time.
c) The learned Adjudicator considered irrelevant material when determining whether there was a breach of contract.
d) The learned Adjudicator erred in law when considering the issue of quiet enjoyment.
e) The learned Adjudicator’s questioning was not neutral.
f) The learned Adjudicator failed to test Ms Turley’s evidence.
Because this is an appeal from a decision of the tribunal in its minor civil dispute jurisdiction, leave is necessary. Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?
The minor civil dispute jurisdiction is a busy one and parties who appear in it often feel that their case has not been given the attention that it deserves. Experienced members often understand the parties’ submissions at a very early stage in the proceedings and try to encourage the parties to “cut to the chase”. This is not intended to be disrespectful of the parties but is simply the result of sitting in a very busy jurisdiction. I have read the transcript carefully. While it appears that the learned Adjudicator cut Mrs Fitz-Gerald’s evidence short, I am satisfied that he maintained neutrality and Mrs Fitz-Gerald was given sufficient opportunity to put her case.
The learned Adjudicator found that Mrs Fitz-Gerald did not provide Ms Turley with quiet enjoyment. Section 249(1) of the Residential Tenancies and Rooming Accommodation Act 2008 requires a provider to take reasonable steps to ensure that a resident has quiet enjoyment of the resident’s room and the common areas. The Act does not contemplate that there is no interference with a resident’s quiet enjoyment; it simply requires the provider to take reasonable steps to ensure it.
I do not necessarily agree with Mrs Fitz-Gerald’s assertion that the principle can only relate to matters specifically attributed to the landlord. The Court of Appeal has determined that the test is not whether the landlord has approved of, or created the offensive conditions but whether the landlord is in a position to correct or terminate it.[1]
[1] Aussie Traveller Pty Ltd v Marklea Pty Ltd [1997] QCA 2 at page 17.
There are two reasons why I disagree with the learned Adjudicator’s findings about the lack of quiet enjoyment. Firstly, Ms Turley is a young woman who is obviously internet-savvy. A Google search of the house clearly shows that it is on a main road, with three lanes of traffic in each direction. A person with this knowledge, or the ability to obtain this knowledge, should have anticipated that a room at the front of the house would experience road noise.
The second reason is that Mrs Fitz-Gerald was given no opportunity to take steps to address the road noise and ensure quiet enjoyment. Ms Turley did not issue a notice to remedy breach. She did not contact Mrs Fitz-Gerald about the problem. She simply left.
I also have doubts about the learned Adjudicator’s finding that Ms Turley relied on representations that there would be three other young women living in the house. The emails from Ms Turley are not so strong as to state that as a pre-condition of her taking the tenancy and she made no mention of the lack of housemates in her email of 10 June 2010 advising that she had left the house.
I have come to the conclusion that the learned Adjudicator erred in law and leave to appeal should be granted.
Ms Turley did not give a notice of intention to leave, nor did she give a notice to remedy breach. I do not agree with Ms Turley’s assertion that she gave Mrs Fitz-Gerald reasonable notice that she could no longer live in the property. I am satisfied that Ms Turley was in breach of her obligations under the tenancy agreement.
Mrs Fitz-Gerald has claimed the following compensation:
Rent arrears (for period 12-17 July 2010 and 27 November 2010 to 31 May 2011) $4,071.45 Parking costs 18.00 QCAT application fee 92.00 Stationery 5.00 Petrol 20.00 Re-advertising 112.40 $4,318.85
Ms Turley points out that she paid 6 weeks’ in advance and occupied the room for less than a week. Therefore, 5 weeks’ rent should be credited against any loss that Mrs Fitz-Gerald suffered through the early termination of the agreement.
Unfortunately, Mrs Fitz-Gerald has not provided any detail about the occupancy of the house and evidence about her efforts to re-let the room is limited. She has given the tribunal copies of invoices for advertising in June and July 2010 but there is no evidence about her efforts in November. While I accept that it may have not have been easy to find a tenant for the Christmas vacation period, I find it difficult to accept that Mrs Fitz-Gerald could not find a tenant for the new academic year. It is reasonable that Ms Turley should compensate Mrs Fitz-Gerald for nine weeks rent, calculated as the week of 12 to 17 July 2010 plus the Christmas period of 8 weeks. Taking into account that Ms Turley pre-paid 5 weeks’ rent, she should pay Mrs Fitz-Gerald a total of $1,000.
As Ms Turley points out, the Easyroom advertising covered a full year and Mrs Fitz-Gerald had other rooms that she wanted to rent out. I do not accept that Ms Turley should pay this cost. On the other hand, the Griffith University advertisement was placed shortly after Ms Turley terminated the agreement. I find that this cost is reasonable and Ms Turley should pay Mrs Fitz-Gerald $27.50.
The tribunal does not compensate parties for their costs of finding information or attending to administrative tasks. I make no order in relation to Mrs Fitz-Gerald’s claim for petrol, parking or stationery. Ms Turley should pay Mrs Fitz-Gerald’s filing fee.
Leave to appeal is granted and the appeal allowed. The order of 20 December 2010 is set aside and the following order substituted: that Ms Turley pay Mrs Fitz-Gerald $1,119.50 within 21 days of the date of this order.
0