Godwin Witten & Associates v Pike
[2015] QCATA 106
•17 July 2015
| CITATION: | Godwin Witten & Associates v Pike [2015] QCATA 106 |
| PARTIES: | Godwin Witten & Associates (Applicant/Appellant) |
| v | |
| Ewin Pike (Respondent) |
| APPLICATION NUMBER: | APL085-15 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 30 June 2015 |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Carmody, Acting President |
| DELIVERED ON: | 17 July 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Tribunal grants leave for the applicant to appeal. 2. The Tribunal sets aside the orders of the primary decision-maker made on 2 February 2015. 3. The Tribunal orders that the respondent pay the applicant $6,145.00. | ||
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where arithmetical error in primary decision – where primary decision-maker failed to award fee for break lease – where primary decision-maker failed to award adequate compensation for maintenance of gardens and grounds of the premises – where primary decision-maker failed to consider an award of monetary compensation for professional cleaning of blinds – where primary decision-maker failed to consider an award of monetary compensation for the removal of green waste – whether leave to appeal should be granted – whether appeal should be allowed Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 24, 147 Pickering v McArthur [2005] QCA 294 | ||
APPEARANCES: C Young for the applicant/appellant
E Pike for the respondent
REASONS FOR DECISION
The applicant, Godwin Witten & Associates, seeks leave to appeal against the decision of Magistrate Bentley in relation to a minor civil dispute. The applicant claims that the learned primary decision-maker erred by:
1.incorrectly calculating the quantum of damages payable by the respondent to the applicant as $4,099.00;
2.failing to award compensation, or adequate compensation, in relation to:
a) the payment of a break lease fee and the advertising of the premises to secure tenants;
b) repairs and maintenance required to restore certain irrigation equipment to an operable condition;
c) the cost of cleaning the external grounds of the premises;
d) the depreciated cost of replacing the carpets of the premises;
e) the cost associated with professionally cleaning the blinds of the premises;
f) the cost associated with making payments for certain water utilities and levies; and
g) the cost of removing waste and refuse from the premises (the “Grounds of Appeal”).
The applicant abandoned Ground of Appeal 2(b), the cost of repairs and maintenance to certain irrigation equipment, during the tribunal hearing. The respondent, Mr Ewin Pike, resists the application claiming, inter alia, that the applicant failed to deliver services commensurate with the quantum of rent payable throughout the survival of the lease.
PROCEDURAL HISTORY
On 7 January 2015, the respondent filed an originating application with the registry for the Queensland Civil and Administrative Tribunal situated in Cairns seeking the recovery of a tenancy bond lodged with the Residential Tenancies Authority.
The applicant filed a counter-application on 30 January 2015 seeking orders requiring the payment of moneys in respect of certain accrued expenses relating to the property and other costs required to restore the premises to an adequately tenantable condition, amounting to $22,398.90.
The learned magistrate rendered judgment in favour of the applicant in the amount of $4,099, comprising of:
1. Unpaid rent for the period between 15 September 2014 and 17 October 2014 accumulating to the value of $2,625.00;
2. The cost of refilling gas containers, which was $73.00;
3. Part of the cost of professionally cleaning the premises, amounting to $600.00;
4. Part of the cost associated with maintaining the grounds of the premises, allowing for fair wear and tear, calculated at $500.00;
5. The cost of pool chemicals accruing until the date of the respondent vacating the premises, which was $241.00;
6. The cost associated with repairing and restoring certain bi-fold doors, amounting to $300.00; and
7. The cost for repairs to miscellaneous and screen repairs, which was $300.00.
PRINCIPLES GOVERNING LEAVE TO APPEAL
The applicant shall be granted leave to appeal if it can establish that there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[1]
[1]Pickering v McArthur [2005] QCA 294 at [3].
GROUND 1: ERROR IN CALCULATING QUANTUM OF COMPENSATION
The applicant claims that the learned magistrate erred in calculating the quantum of compensation payable as $4,099. The applicant claims that, on the learned magistrate’s own finding of facts, the amount of compensation payable should have been $4,639.00.
The respondent resists the applicant’s claim, asserting that the services delivered by the applicant were not commensurate with the quantum of rent payable and therefore the decision of the primary decision-maker should not be disturbed.
The respondent’s argument is not relevant to the arithmetical accuracy of the calculations of the primary decision-maker, and does not amount to any defence cognisable by law. Indeed, it appears to reopen certain assertions made before the learned primary decision-maker. There is nothing in the transcript that persuades me that the learned Magistrate ought to have taken a different view of the facts in this respect.
The Tribunal finds that the learned Magistrate erred in calculating the compensation payable as $4,099. The sum of all items of compensation ordered by the learned Magistrate listed in [5] above is $4,639.
Application for leave to appeal on Ground 1 is granted, and the appeal is allowed.
GROUND 2(a): ERROR IN FAILING TO AWARD COMPENSATION FOR THE BREAK LEASE FEE AND ADVERTISING
The applicant claims that the learned Magistrate erred in failing to award monetary compensation for the break lease fee and associated advertising as a result of the early termination of the tenancy.
Section 13 of the General Tenancy Agreement executed by the applicant and respondent allows for the insertion of “special terms” through an annexure. Addendum C to the Agreement, titled “Special Conditions of Tenancy” provides that the respondent agreed to pay a “Break Lease Fee” of one week’s rent plus Goods and Services Tax if they terminate the agreement early.
The Magistrate held, in relation to the break lease fee that:
Break lease and advertising… in my view that’s not an amount that can be compensated under the legislation.
Section 420(2)(b) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) empowers the Tribunal, on an application for breach of a residential tenancy agreement, to make an order for the payment of money or, under section 420(2)(e), an order for the payment of compensation.
The learned Magistrate clearly possessed jurisdiction to award a break lease fee under the Special Conditions of Tenancy. The circumstances indicate that the respondent has terminated the lease early, and therefore under the Special Conditions of Tenancy the Break Lease Fee shall accrue. There are no circumstances indicating that the imposition of the Break Lease Fee is either unconscionable, unfair or inequitable.
The Break Lease Fee is calculated at one week’s rent plus Goods and Services Tax. The applicant and respondent agreed during the tribunal hearing that one week’s rent, at the relevant time, was $525.00. Adding Goods and Services Tax of 10%, the total value of the Break Lease Fee payable by the respondent to the applicant is $577.50.
The applicant also seeks payment for advertising costs associated with reletting the premises. The applicant is entitled to advertising expenses under clause 7 of the General Tenancy Agreement. Section 421(1)(b) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) also requires the Tribunal to consider any advertising expenses incurred by the applicant for reletting the premises. The applicant has supplied an invoice submitted by the applicant to the respondent seeking $85 for advertising expenses.
The applicant has not supplied an original invoice from the supplier of advertising services to the applicant. The applicant, therefore, has not discharged its onus on the balance of probabilities that any advertising expenses have been incurred by the applicant warranting reimbursement.
Leave to appeal on Ground of Appeal 2(a) should be granted, and the appeal is allowed in part. The applicant is entitled to the payment by the respondent of the Break Lease Fee, valued at $577.50. The applicant has not established its entitlement to the reimbursement of advertising expenses on the balance of probabilities.
GROUND 2(c): ERROR IN FAILING TO AWARD COMPENSATION FOR THE COST OF CLEANING THE EXTERIOR GROUNDS OF THE PREMISES
The applicant claims that the learned magistrate erred in awarding only $500 for cleaning the grounds and gardens of the premises. The applicant claims that the full value of the garden cleaning, evidenced by invoices amounting to $918.00, should be awarded against the respondent.
The learned Magistrate refused to award the full $918.00 in favour of the applicant, and instead awarded only $500.00 in light of “fair wear and tear”.
The respondent claimed during the appeal hearing that, according to the Residential Tenancies Authority, the tenant is not obliged to maintain or clean sections of the premises or grounds above “head height”. No such principle exists under law.
The respondent is responsible for keeping the premises and inclusions clean having regard to their condition at the commencement of the tenancy.[2] At the end of the tenancy, the respondent must leave the premises as far as possible in the same condition as they were at the commencement of the tenancy, fair wear and tear excepted.[3] The Special Conditions of Tenancy also expressly prescribes that the tenant must maintain all garden areas by watering plants, mowing the lawn and removing from the premises all garden and pet waste.
[2]Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 188(2).
[3]Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 188(4).
The photographic evidence adduced by the applicant indicates that there was considerable garden waste at the time of the vacation of the premises. Although the respondent claimed that the applicant had not paid for any maintenance of the grounds of the premises throughout the six year duration of the premises, the applicant has adduced an invoice indicating that a major garden cut and gutter clean was performed on 14 March 2014.
Although the applicant sought to tender the invoice before the learned Magistrate, it appears that it was not received into evidence and has not been recorded on the primary court file. The applicant claims that this was an oversight, which appears from page 24 of the Transcript.
I am satisfied that the learned Magistrate erred in failing to receive the invoice into evidence. This evidence should be included in the interests of justice, and to avoid a gross injustice to the applicant, on appeal.
In light of the invoice indicating that major gardening clean was performed just over seven months prior to the vacation of the premises, the amount of garden waste which accumulated over the duration of the period did not constitute fair wear and tear.
Accordingly, the application for leave to appeal on Ground of Appeal 2(c) should be granted, and the appeal should be allowed.
GROUND 2(d): ERROR IN FAILING TO AWARD COMPENSATION FOR THE REPLACEMENT OF THE CARPET
The applicant claims that the learned Magistrate erred in failing to award compensation for the replacement of the carpet. The respondent resists the application on the ground that any damage sustained was fair wear and tear.
The obligation of the respondent to maintain the premises, and leave it in an appropriate state of repair at the conclusion of the tenancy, is discussed briefly at [23].
The learned Magistrate found that the carpets were replaced by timber flooring, and that the moneys claimed by the applicant were not expended. The learned Magistrate, therefore, refused to grant compensation for the replacement of the carpets.
The primary decision-maker was correct to refuse to award compensation for the replacement of the carpets in the absence of any expense incurred for replacement. Even if I were minded to grant compensation, the evidence of the condition of the carpets before the Tribunal is consistent with fair wear and tear over a seven year period.
Accordingly, application for leave to appeal on Ground of Appeal 2(d) is refused.
GROUND 2(e): ERROR IN FAILING TO AWARD COMPENSATION FOR PROFESSIONAL CLEANING OF THE BLINDS
The applicant claims that the learned Magistrate erred in failing to award compensation for professional cleaning of the blinds.
The Special Conditions of Tenancy prescribes that, on vacating the premises, the respondent was obliged to employ a professional cleaner to clean the curtains, blinds or any fabric upholstered furniture present at the property and provide a receipt as evidence to the applicant.
The evidence indicates that the respondent did not employ a professional cleaner to clean the blinds. The applicant has adduced an invoice for the cleaning amounting to $198.00.
The claim for cleaning of the blinds was particularised in the counter-application filed by the applicant, and referred to in the applicant’s supporting affidavit. The failure of the learned Magistrate to consider the professional cleaning of the blinds appears to be a mere oversight.
Accordingly, application for leave to appeal on Ground of Appeal 2(e) is granted, and the appeal is allowed.
GROUND 2(f): ERROR IN FAILING TO AWARD COMPENSATION FOR CERTAIN PAYMENTS MADE RELATING TO WATER CONSUMPTION
The applicant claims that the learned Magistrate erred in failing to award compensation for outstanding water consumption costs.
The applicant claimed $41.66 in outstanding water consumption costs in its counter-application. In support of this claim, the applicant supplied two Water Usage Notices from the Cairns Regional Council. In an affidavit supplied by Ms Coral Young of Godwin Witten & Associates, Ms Young claims: (a) that the water consumption charges remained outstanding; and (b) that the respondent was partly responsible for the water charges, and was entitled to sixty-six litres before being charged at the prevailing rate. The applicant also furnished invoices submitted by the applicant to the respondent seeking payment of the $41.66.
The applicant has not established, except by affidavit evidence, that there was an agreed practice whereby the respondent paid for water consumption in excess of sixty-six litres at the prevailing rate. Furthermore, the applicant has not established by independent evidence that the respondent has not paid the allegedly outstanding water consumption charges. Indeed, the respondent has claimed in his response to the counter-application that all outstanding water consumption charges were paid.
The application for leave to appeal on Ground of Appeal 2(f) is granted. The appeal on Ground of Appeal 2(f) is dismissed on the basis that the applicant has failed to establish on the balance of probabilities that the applicant was entitled to payment of $41.66 for outstanding water charges.
GROUND 2(g): ERROR IN FAILING TO AWARD COMPENSATION FOR REMOVAL OF REFUSE
The applicant claims that the learned Magistrate erred in failing to award compensation for the cost of removing refuse.
The obligation of the respondent to maintain the premises, and leave it in an appropriate state of repair at the conclusion of the tenancy, is discussed at [23]. Under the Special Conditions of Tenancy, the respondent also possesses obligations to maintain the garden and grounds of the premises.
The claim for payment for the removal of green refuse was particularised in the counter-application filed by the applicant.
The applicant has adduced an invoice for $312.50 from a third party vendor for the removal of significant quantities of green waste from the premises. The applicant has attested in an affidavit of the need to remove the stated green waste. The respondent does not appear to have refuted the need to remove the green waste, and photographic evidence establishes the presence of considerable green waste on the premises.
The application for leave to appeal on Ground of Appeal 2(g) is granted, and the appeal is allowed on the basis that the learned Magistrate failed to take into consideration a relevant fact established on the balance of probabilities.
SUMMARY
On the basis of the foregoing reasons, the respondent owes the applicant:
1.Unpaid rent for the period between 15 September 2014 and 17 October 2014, accumulating to the value of $2,625.00;
2. The cost of refilling gas containers, which was $73.00;
3. The cost of professionally cleaning the premises, amounting to $600.00;
4. The cost associated with maintaining the grounds of the premises, allowing for fair wear and tear, calculated at $918.00;
5. The cost of pool chemicals accruing until the date of the respondent vacating the premises, which was $241.00;
6. The cost associated with repairing and restoring certain bi-fold doors, amounting to $300.00;
7. The cost of screen repairs, which was $300.00;
8. The Break Lease Fee, valued at $577.50;
9. The cost of professionally cleaning the blinds, which was $198.00; and
10. The cost of removing refuse from the premises, amounting to $312.50.
The accumulated amount owed by the respondent to the applicant is $6,145.00.
ORDERS
The Tribunal grants leave for the applicant to appeal.
The Tribunal sets aside the orders of the primary decision-maker made on 2 February 2015.
The Tribunal orders that the respondent pay the applicant $6,145.00.
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