Gould v Mazheiko & Gill - [2020] QCATA 10

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION: Gould v Mazheiko & Gill [2020] QCATA 10

PARTIES: LEIGHA GOULD

(applicant/appellant)

v

ELIZAVITA MAZHEIKO

(first respondent)

JEROME GILL

(second respondent)

APPLICATION NO/S:

APL043-19

ORIGINATING APPLICATION NO/S:

Noosa MCDT109/18

MATTER TYPE:

Appeals

DELIVERED ON:

31 January 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Daubney, President

ORDERS:
1. The applicant has leave to appeal.

2. The appeal is dismissed.

CATCHWORDS:

LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – OBLIGATIONS, PROHIBITED MATTERS AND PROTECTION FOR LESSEES – RENT – where the applicant was the tenant of a premises – where the respondents were the landlords – where the applicant made various complaints regarding the premises – where the applicant’s belongings were damaged – where the premises required carpet cleaning and pest control – where the landlord unlawfully entered the property – where the applicant applied to the Queensland Civil and Administrative Tribunal (‘QCAT’) for a reduction in rent or compensation after the conclusion of the tenancy agreement – where this application was dismissed – where the applicant applied for leave to appeal the decision of the Tribunal to the Appeal Tribunal of QCAT – whether the Tribunal erred in applying a six month time limit to the rent reduction regime under s 94 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘RTRA Act’) – whether applications under s 94 of the RTRA Act must be made during the tenancy

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i)

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), ss 94, 419, 420

Bourke v Kenjad Rentals [2019] QCATA 81, followed

Champion & Anor v Laterma Pty Ltd & Ors [2018] QCAT 392, considered

Hurst v Pyatt [2017] QCATA 101, considered

Masinello v Parker & Anor [2013] QCATA 325, considered

Underwood v Queensland Department of Communities [2013] 1 QdR 252, applied

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

This is an application by Ms Gould for leave to appeal against the decision of the Tribunal in Noosa claim MCDT109/18. In that application, Ms Gould had sought a total of $11,430 claimed as either a rent reduction under s 94 of the Residential Tenancies and Rooming Accommodation Act 2008 (‘RTRA Act’) or compensation under ss 419 and 420 for damaged belongings, carpet cleaning and pest control and in respect of unlawful entries by the landlord. The matter came on for hearing before Acting Magistrate Hillan on 11 January 2019 and was struck out for want of jurisdiction.

Preliminary

There has been no response in this matter from either of the named respondents who were the landlords under the tenancy agreement. The male respondent, Mr Gill, appeared at the hearing at first instance along with the property manager, Jocelyn Rennex. An earlier review of the file revealed that the application for leave to appeal…

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: [2020] QCATA 10
Decision Date: 31 January 2020

CaseChat Overview and Summary

The applicant, Gould, was a tenant under the landlords, Mazheiko and Gill. Gould applied to the Queensland Civil and Administrative Tribunal (QCAT) for a reduction in rent or compensation following various complaints about the state of the rental premises. Gould alleged that the premises required carpet cleaning and pest control, that his belongings were damaged, and that the landlords had unlawfully entered the property. QCAT dismissed the application and Gould sought leave to appeal this decision to the Appeal Tribunal of QCAT. Gould argued that QCAT had erred in applying a six-month time limit to the rent reduction regime under section 94 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) and that applications under section 94 of the Act must be made during the tenancy.

The Appeal Tribunal held that the appeal was not frivolous or vexatious and that there was a serious question to be tried in relation to whether QCAT had erred in applying the six-month time limit to the rent reduction regime. The Tribunal found that the proper approach was to determine whether there was a breach of the tenant’s quiet enjoyment of the premises and that this was a question of fact and degree. The Tribunal concluded that it was open to QCAT to find that there was no breach of the tenant’s quiet enjoyment where the landlord had acted promptly to remedy the issues raised by the tenant.

The Appeal Tribunal dismissed the appeal and found that QCAT had not erred in concluding that there was no breach of the tenant’s quiet enjoyment of the premises. The Tribunal held that the tenants had not made out a case for a reduction in rent or compensation. The Tribunal found that the tenants had failed to establish that the landlords had failed to maintain the premises in a good and tenantable condition and that the tenants had not suffered any loss or damage as a result of the landlords' actions. The Tribunal also held that the tenants had not established that the landlords had acted in a manner that was inconsistent with the landlords’ obligations under the Act.

Orders

Orders of the court

1. The applicant has leave to appeal.

2. The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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