Gimblett v Turabi

[2011] QCATA 353

CITATION: Gimblett and Anor v Turabi and Anor [2011] QCATA 353

PARTIES:	Mr Nigel Gimblett Mrs Sharon Gimblett
v
Mrs Bianca Ginerva Turabi Mr Namink Ali Turabi

APPLICATION NUMBER:            APL243-11               

MATTER TYPE: Appeals

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Peta Stilgoe, Acting Senior Member

DELIVERED ON:   21 September 2011

DELIVERED AT:   Brisbane

ORDERS MADE:       Leave to appeal refused. 

CATCHWORDS:

MINOR CIVIL DISPUTE – TENANCY – where air conditioning units not adequate for the task – whether tenant has a right to compensation – whether error in date on notice to remedy breach affects ability to claim compensation – whether grounds for leave to appeal

Residential Tenancies and Rooming Accommodation Act 2008, s 325

Dearman v Dearman (1908) 7 CLR 549

Fox v Percy (2003) 214 CLR 118

Chambers v Jobling (1986) 7 NSWLR 1

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. In August 2008, Mr and Mrs Turabi moved into in a house owned by Mr and Mrs Gimblett.  Mr and Mrs Turabi say that the three air conditioning units in the house have never worked properly.  Their complaints about this culminated in a notice to remedy breach issued in February 2011.  Mr and Mrs Gimblett responded to the notice by engaging an air conditioning expert.  The expert found that two of the units were undersized and the third was out of gas.  The third unit was re-gassed. 

1. Mr and Mrs Turabi brought an application for compensation for the lack of air conditioning at a rate of $30 per week for the period they had occupied the house.  The application was brought against Mr and Mrs Gimblett’s agent Oxenford Realty Pty Ltd.  The learned Member ordered that Mr and Mrs Turabi receive compensation only for the hotter months of the years they were in occupation and ordered Mr and Mrs Gimblett’s agent pay Mr and Mrs Turabi $2,000.

1. Mr and Mrs Gimblett have appealed the learned Member’s decision on these grounds:

a)    The builder was notified of air conditioning problems numerous times and found no fault with the systems.

b)    Air conditioning contractors inspected the property and found that there was no problem with two air conditioners except that they were undersized.  The third unit was low on gas, which the contractors rectified immediately.

c)    The notice to remedy breach was incorrectly dated and is, therefore, invalid.

1. 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?

1. The factual issues raised by Mr and Mrs Gimblett in their application for leave to appeal were canvassed by the learned Member during the hearing.  He was aware that the builder had been notified of the problems and could find no fault with the system.  The learned Member was also aware that, in response to the notice to remedy breach, the parties finally discovered that two of the air conditioning units were undersized. 

1. It is implicit in the learned Member’s decision that he was satisfied that Mr and Mrs Gimblett had not taken all reasonable steps to ensure that Mr and Mrs Turabi had quiet enjoyment of the house during their tenancy because Mr and Mrs Gimblett had not taken steps to determine the cause of the cause of the air conditioning failure at an earlier time.

1. Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[1] 

   [1]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.

1. An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.[2]  As the High Court said in Fox v Percy:

In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses.  In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.[3]

[2]        Chambers v Jobling (1986) 7 NSWLR 1 at 10.

[3]        Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.

1. The learned Member referred to the emails from Mrs Turabi to the agent, complaining about the air conditioning.  He accepted that Mr and Mrs Gimblett’s builder attempted to fix the air conditioning without success.  He accepted that Mr and Mrs Turabi’s complaints about the air conditioning were valid.  There is nothing in the transcript that persuades me that the learned Member should have taken a different view of the facts.

1. Section 325 of the Residential Tenancies and Rooming Accommodation Act 2008 sets out the requirements for a valid notice to remedy breach.  One of those requirements is that the notice state the day by which a party is required to remedy the breach.  Obviously, the date of 11 February 2010 contained in the Form 11 is wrong but the actions of Mr and Mrs Gimblett’s agent and the subsequent correspondence show that no one was under any misapprehension about the date nominated as the date to remedy breach and no one was treating the notice as invalid.

1. A landlord is required to take reasonable steps to ensure the tenant’s right to quiet enjoyment[4].  A notice to remedy breach is not a precondition to a tenant’s right to compensation for breach of quiet enjoyment.  Even if the notice to remedy breach was invalid because of the error in the date, Mr and Mrs Turabi retain their right to claim compensation.

   [4]            Section 183 RTRA Act.

1. There is no question of general importance that should be determined by the appeal tribunal; there is no reasonably arguable case that the learned Adjudicator was in error; there is no reasonable prospect of substantive relief on appeal; and there is no evidence that a substantial injustice will result if leave is not granted.  Leave to appeal should be refused.