Griffin v Gini
[2011] QCATA 325
•1 December 2011
| CITATION: | Griffin v Gini [2011] QCATA 325 |
| PARTIES: | Larry Griffin Debra Griffin (Appellants) |
| v | |
| Marcello Gini Danielle Gini (Respondents) |
| APPLICATION NUMBER: | APL251-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Fleur Kingham, Deputy President |
| DELIVERED ON: | 1 December 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The Application for leave to appeal is refused.1. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where former tenants ordered to pay for damage to walls and kitchen bench – where tenants argued fair wear and tear not properly assessed by learned Magistrate – where damage fell outside scope of fair wear and tear Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(i) Fink v Fink (1946) 74 CLR 127 applied |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
Mr and Mrs Gini are lessors of a property in Townsville. Mr and Mrs Griffin were their tenants. Following termination of the tenancy, Mr and Mrs Gini lodged an application in the Minor Civil Dispute jurisdiction of QCAT for losses incurred as a result of the Griffins’ tenancy.
On 24 January 2011 a Magistrate in Townsville, acting in his capacity as a QCAT Member, ordered the Griffins to pay the Ginis a total of $4,882.70 in damages. The Griffins lodged an application for leave to appeal that decision.
Leave is required to appeal from a decision arising from a Minor Civil Dispute.[1] Leave 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] Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(i).
The Griffins’ grounds for leave to appeal can be summarised as follows:
a)The learned Magistrate erred by treating the tenancy agreement, and the obligations of the tenant, as having commenced in May 2007, not May 2010 when the final tenancy agreement commenced; and
b)The learned Magistrate erred by allowing 100% of the cost of repainting the premises when the premises were not new.
Is the date the tenancy agreement commenced relevant to the claim?
The Griffins and Ginis entered into a fixed term tenancy agreement for the first time on 17 May 2007. The property was new; the Griffins were the first tenants in the premises. They entered into a further 5 consecutive agreements, the sixth and last commenced on 17 May 2010. That agreement ended early, by consent, on 31 August 2010, when the Griffins vacated the premises.
The bulk of the Ginis’ claim is for damage to the property (specifically, to the walls and kitchen bench) found at the end of the Griffins’ tenancy. The Ginis also claimed an amount for rental arrears; and carpet cleaning however those amounts were not contested on appeal.
At the hearing, the learned Magistrate received photos from both parties, DVD evidence from the Griffins, the entry condition report from May 2007 and the vacate inspection report from May 2010.
The transcript of the proceedings reveals the learned Magistrate found the state of the evidence was not ideal. However, on the balance of probabilities, he found the Griffins liable for damages: $3,960 for damages to the walls and $220 for damage to the bench tops.
The learned Magistrate stated the main issue for determination was the tenant’s obligations in relation to the tenancy. He cited section 188 of the Residential Tenancies and Rooming Accommodation Act 2008 (RTRA Act). It provides that, at the end of the tenancy, the tenant must leave the premises and inclusions, as far as possible, in the same condition they were at the commencement of the tenancy, fair wear and tear excepted. The learned Magistrate stated the tenancy commenced in May 2007, at which time the premises were new.
[10] The Griffins did not raise the issue at hearing; however on appeal they argued the relevant commencement date of the tenancy was May 2010, not May 2007. They have made extensive and varied submissions regarding the significance of the commencement date of the tenancy and the consequences, they submit, that flow from the learned Magistrate’s view that the tenancy commenced on May 2007. Their submissions are based on the application of the term ‘fair wear and tear’. The Griffins argue that fair wear and tear should have been assessed in the context of their tenancy having commenced in 2010, when the property had been lived in for 3 years, as opposed to 2007, when the property was new and had not been lived in.
Fair wear and tear
[11] As the learned Magistrate observed at the hearing, the expression “fair wear and tear” is not defined in the RTRA Act. Commendably, he outlined a couple of relevant definitions from LexisNexis, a legal research database. Due to time constraints, an unavoidable feature of the Minor Civil Dispute jurisdiction, the learned Magistrate was unable to cite the source of his definitions or expand upon them. I will briefly do so now.
[12] The phrase “wear and tear” has been common in leases and tenancy agreements for centuries.[2] In general, the ordinary meaning of the phrase is concerned with the consequences of ordinary, not extraordinary damage.[3] In the case of ‘wear’, this might mean, for example, fading paint work on internal and external walls caused by sunlight over time; ‘tear’ refers to disrepair caused by a tenant through unintentional action or through the normal incident of a tenant’s occupation.[4] Depending on the specifics of the obligations outlined in a tenancy agreement, this might include the accidental ripping of an aged, worn fly screen. In summary, fair wear and tear, in the context of a residential tenancy, refers to damage or disrepair caused or resulting from ordinary use.
[2] Taylor v Webb [1937] 2 KB 283, 302.
[3] JSM Management Pty Ltd v QBE Insurance (Australia) Ltd [2011] VSC 339, [36].
[4] Taylor v Webb [1937] 2 KB 283, 302.
[13] The evidence before the learned Magistrate, about the walls and the bench top, concerned damage that fell outside the scope of fair wear and tear. For example, the Griffins attempted to repair damage to patches of the wall by using paint that did not match the original paint work. The Griffins accepted they had painted the walls but argued the paint they used matched the original. The learned Magistrate concluded the paint did not match. I am not persuaded there was any error in his assessment.
[14] Although this may have been done by the Griffins in an attempt to rectify damage, applying paint does not fall within the scope of ordinary use. It is a deliberate act; the Griffins have caused damage to the walls through that deliberate act.
[15] There was also evidence of other damage to the walls: blue biro and sticky tape. The use of the latter was specifically prohibited by the terms of the lease and, therefore, falls outside the scope of ordinary use. As for the blue biro, this might well be accepted as fair wear and tear, but the evidence indicates this is not the primary basis upon which the damages claim was based.
[16] The damage caused to the bench top falls into the same category; deep grooves possibly caused by the use of a knife without a chopping board, cannot be said to fall within the scope of ordinary use.
[17] Regardless of whether the damage was caused before the sixth and final tenancy commenced in May 2010, or during the period of that tenancy, the Griffins are liable for the damage. They were the only tenants occupying the premises under a tenancy agreement during the time the damage must have occurred. The Ginis would always have had the right to recover damage that fell outside the scope of fair wear and tear. The damage caused to the walls and the bench top does not fall into the category of fair wear and tear and regardless of whether the tenancy in question commenced in 2010 or 2007 the damage was caused by the tenants.
Did the learned Magistrate err by allowing 100% of a quote for the cost of repainting the premises?
[18] The Griffins submit that at the commencement of the relevant tenancy agreement (May 2010) the life of the walls had already deteriorated and that the damages should have reflected that. Further, they submit that the premises had new tenants at the time the quote was done and that any damage to the painted walls (if admitted) could only be properly assessed once any subsequent damage or degradation caused by the new tenants was discounted. They argue that they should not have to bear 100% of the cost of painting the premises. The Griffins also submit the quotation upon which the learned Magistrate based the award included areas of the premises for which they should not be responsible.
[19] The vacate inspection report stated ‘mismatched paint patches unacceptable’ in relation to the Lounge, Dining/Family rooms, Kitchen, and bedrooms 4, 3 and 2. It also stated ‘large render scrapes to rendered wall on back patio.’ The quotation for repainting the premises includes a note stating ‘the stains [and] marks on the wall vary…touch ups done up in the wrong colour throughout the house.’ The areas to be painted includes ‘carport.’ It is unclear whether or not this is the back patio referred to in the vacate inspection report but it is not unreasonable to infer that it might be.
[20] Assessment of damages is a pragmatic task. Even more so in the Minor Civil Dispute jurisdiction, in which the evidentiary basis for assessment is likely to be scant.[5] The learned Magistrate had to make do with the evidence before him. Difficulty in assessing damage does not relieve the Tribunal from estimating it as best it can.[6] The transcript reveals that though the evidence was not perfect, the learned Magistrate did give it due consideration and awarded the amount that appeared reasonable.
[5] Price v Schofield [2010] QCATA 40, [18].
[6] Fink v Fink (1946) 74 CLR 127, 143.
[21] The primary cause of the need to repaint the premises was the mismatched paint patches throughout the house. Arguably, but for the patches, the walls would not need to be repainted. It was not unreasonable for the learned Magistrate to award the whole amount of the quotation.
Additional Matter
[22] The Griffins argued the paint work has not yet been carried out, effectively allowing the Ginis to ‘double dip’ and make another claim against the current tenants at a later date. The Ginis’ agent gave evidence at the hearing that the premises had been repainted. The learned Magistrate was entitled to take that evidence into account. In any case, it is not appropriate for the Tribunal to speculate that the Ginis’ may make an unsustainable claim against the new tenants. There is no evidence to support that allegation.
Conclusion
[23] The Griffins have not made out an arguable case of error on the part of the learned Magistrate. He has properly interpreted the phrase wear and tear. The damage fell outside that definition, and as the Griffins caused the damage, the question of when it occurred is not pertinent. The Ginis were entitled to recover the damages awarded, regardless of when each particular tenancy agreement commenced and concluded. Leave to appeal is refused.
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