Harati v Symphony at Wakerley - [2024] QCAT 121

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Harati v Symphony at Wakerley [2024] QCAT 121

PARTIES:

HAMIDREZA HARATI

(applicant)

v

SYMPHONY AT WAKERLEY

(respondent)

APPLICATION NO:

Q372/24

MATTER TYPE:

Residential tenancy matters

DELIVERED ON:

13 March 2024

HEARING DATE:

4 March 2024

HEARD AT:

Brisbane

DECISION OF:

Member Scott-Mackenzie

ORDERS:

The rent payable by the applicant to the lessor under the residential tenancy agreement entered on 7 September 2023 is reduced from $550.00 per week to $492.00 per week.

CATCHWORDS:

CIVIL LAW – CIVIL TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY DISPUTE – where applicant applied for an order reducing proposed increase of rent under s 92 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) – whether the application should have been made under s 71 – whether application within time – whether s 71 applies – whether rent should be reduced

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 71, s 92, s 190, s 191, s 417

Mark Coker v Ray White Moranbah [2011] QCATA 206

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Ms Song

REASONS FOR DECISION

Application

The applicant, on 22 January 2024, made application to the Tribunal for an order under section 92 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act) (rent increases) and section 191 of the Act (failure to comply with maintenance obligation).
Background
The premises occupied by the applicant are situated at unit 3, 8 Carr Street, St Lucia (premises and applicant’s unit). The premises are a two-bedroom unit with two bathrooms and a one-car garage.
The applicant entered into a residential tenancy agreement in respect of the premises for a term starting on 30 October 2020 and ending on 30 October 2021 (first tenancy agreement). The rent payable under the tenancy agreement was $400.00 per week.
The applicant entered into a second residential tenancy agreement in respect of the premises for a term starting on 31 October 2021 and ending on 29 October 2022 (second tenancy agreement). The rent payable under the agreement was again $400.00 per week.
A third residential tenancy agreement was entered into by the applicant in respect of the premises for a term starting on 30 October 2022 and ending on 28 October 2023 (third tenancy agreement). The rent payable under the agreement was $410.00 per week, an increase of 2.5% on the rent payable under the first and second tenancy agreements.
A fourth residential tenancy agreement was entered into by the applicant in respect of the premises for a term of twelve months, starting on 29 October 2023 and ending on 26 October 2024 (fourth tenancy agreement). The rent payable under the agreement is $550.00 per week, an increase of more than 34% on the rent payable under the third tenancy agreement.
The rent payable under the fourth tenancy agreement is that challenged by the applicant in the proceeding.
Withdrawal of the application for an order under section 190 of the RTRA Act
At…

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: [2024] QCAT 121
Decision Date: 13 March 2024

CaseChat Overview and Summary

In the matter of Harati v Symphony at Wakerley, the applicant sought to challenge a significant rent increase under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). The application was initially lodged under section 92 of the Act, which pertains to rent increases during a fixed-term tenancy. However, the respondent argued that the application should have been made under section 71 of the Act, which applies to rent increases relating to a new fixed-term tenancy agreement. The central legal issues were whether the applicant's application was appropriately filed under the correct section of the Act and whether it was made within the prescribed time limit. Additionally, the court needed to determine whether the increased rent was excessive considering the state of repair of the premises and the market rates for comparable properties.

The Tribunal found that the applicant's application should indeed have been made under section 71, as the increase related to a new fixed-term tenancy agreement. The court further noted that the application was timely filed within the 30-day window stipulated by section 92(3) of the Act. The Tribunal assessed the state of repair of the premises, noting significant damage, and compared this with market rates for similar properties in the area. The Tribunal concluded that the increase in rent of over 34% constituted a significant change and that the proposed rent was excessive, considering the substandard condition of the premises and the lower rents charged for comparable properties.

Consequently, the Tribunal ordered the rent to be reduced from $550.00 per week to $492.00 per week, representing an increase of 20% over the rent payable under the previous tenancy agreement. This decision was based on the significant disparity between the applicant's premises' condition and the rent proposed by the respondent, as well as the market rates for similar properties in the vicinity. The final order mandated the reduction of the rent from $550.00 per week to $492.00 per week, reflecting an appropriate adjustment given the circumstances.

Orders

Orders of the court

The rent payable by the applicant to the lessor under the residential tenancy agreement entered on 7 September 2023 is reduced from $550.00 per week to $492.00 per week.

Background

Background to the litigation

The applicant, on 22 January 2024, made application to the Tribunal for an order under section 92 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act) (rent increases) and section 191 of the Act (failure to comply with maintenance obligation).Background The premises occupied by the applicant are situated at unit 3, 8 Carr Street, St Lucia (premises and applicant’s unit). The premises are a two-bedroom unit with two bathrooms and a one-car garage. The applicant entered into a residential tenancy agreement in respect of the premises for a term starting on 30 October 2020 and ending on 30 October 2021 (first tenancy agreement). The rent payable under the tenancy agreement was $400.00 per week. The applicant entered into a second residential tenancy agreement in respect of the premises for a term starting on 31 October 2021 and ending on 29 October 2022 (second tenancy agreement). The rent payable under the agreement was again $400.00 per week. A third residential tenancy agreement was entered into by the applicant in respect of the premises for a term starting on 30 October 2022 and ending on 28 October 2023 (third tenancy agreement). The rent payable under the agreement was $410.00 per week, an increase of 2.5% on the rent payable under the first and second tenancy agreements. A fourth residential tenancy agreement was entered into by the applicant in respect of the premises for a term of twelve months, starting on 29 October 2023 and ending on 26 October 2024 (fourth tenancy agreement). The rent payable under the agreement is $550.00 per week, an increase of more than 34% on the rent payable under the third tenancy agreement. The rent payable under the fourth tenancy agreement is that challenged by the applicant in the proceeding.Withdrawal of the application for an order under section 190 of the RTRA Act At the commencement of the hearing of the proceeding, the applicant withdrew the application for an order under section 190 of the RTRA Act. Instead, he explained, he relies on the state of repair of the premises as evidence the rent payable under the fourth tenancy agreement is excessive.Correct section The applicant applied to the Tribunal for an order under section 92 of the RTRA Act. Late in the hearing of the proceeding, the respondent raised for consideration by the Tribunal whether the applicant had made the application within the time required by section 92(3) of the Act. The time required for an application under the section is 30 days after the tenant receives notice of the proposed rent increase and, if the agreement is a fixed term agreement, before the term of the agreement ends. In Mark Coker v Ray White Moranbah[1], the then Deputy President of the Tribunal, Kingham DCJ, observed:Rent increases can be challenged under the RTRA Act. Which section confers jurisdiction is determined by the nature of the tenancy. If the increase relates to a periodic tenancy or is made during a fixed term tenancy, the application may be brought under s 92. If the increase relates to a new fixed term tenancy agreement entered after a previous fixed term tenancy expires, s 71 applies.[2][1][2011] QCATA 206.[2]Ibid, at [4].

Evidence

Evidence Before The Court

The proceeding was heard by the Tribunal on 4 March 2024. The applicant was self-represented. Ms Song appeared on behalf of the respondent.EvidenceApplicant The applicant offered as evidence of the range of market rents usually charged for comparable premises the following:Unit 3, 159 Sir Fred Schonell Drive, St LuciaThe premises comprise a two-bedroom unit with one bathroom and a one-car garage.The premises were rented on 22 February 2024 for $440.00 per week. The premises are in a better state of repair, the applicant stated, than the premises occupied by him. The increase in rent payable under the fourth tenancy agreement, the applicant submitted, is more than 34% higher than the rent payable under the third tenancy agreement. Under the third tenancy agreement, the rent was increased by $10.00 per week. The premises, the applicant further submitted, were built in the 1960s. The applicant filed in the Tribunal many photographs depicting the state of repair of the premises. They show significant damage to carpets, walls, and tiles. They also show old and damaged curtains. I accept the premises are not in a good state of repair.Respondent Ms Song drew attention to the premises at unit 3, 159 Sir Fred Schonell Drive, St Lucia having one more bathroom whilst the premises at unit 5, 192 Sir Fred Schonell Drive, St Lucia have only one bathroom. Unit 9, 8 Carr Street, St Lucia is in the same building as the applicant’s unit and has the same number of rooms. It was rented on 28 November 2023 for $560.00 per week. Ms Song also drew attention to the comparative market analysis filed by the respondent.[8] The document contains nine units with two bedrooms, two bathrooms and a one-car garage in St Lucia said to be comparable premises. The rents range from $510.00 per week to $690.00 per week. The average rent is $620.00 per week.[8]Document number 24 on the court file.Closing In closing, the applicant referred to the premises being invaded by insects and vermin and the absence of any or any adequate pest control. Ms Song submitted the respondent had been prompt in responding to requests for maintenance and repairs by the applicant. The premises, she further submitted, comply with minimum housing standards. I am satisfied the requirements set out in paragraphs (a) – (d) of section 71(1) of the RTRA Act are met in the circumstances here. The section applies.Is the increase in rent a significant change? On any view, an increase in rent payable under the fourth tenancy agreement of more than 34% of the rent payable under the third tenancy agreement is a significant change in rent.The range of market rents usually charged for comparable premises The premises at unit 9, 8 Carr Street, St Lucia are in the same building as the applicant’s unit. The unit contains the same number of rooms as the applicant’s unit and, on 28 November 2023, was rented for $560.00 per week. I accept the unit is in a better state of repair than the applicant’s unit. Unit 3, 159 Sir Fred Schonell Drive, St Lucia is located further from the University of Queensland than the applicant’s unit. It has only one bathroom. It was rented on 22 February 2024 for $440.00 per week.

Decision

Reasons for decision

Taking into consideration each of the matters mentioned, in particular the range of the market rents usually charged for comparable premises in the vicinity of the applicant’s unit, the significant increase in rent compared to the previous rent and the state of repair of the applicant’s unit, I am of the opinion the increased rent is excessive. An appropriate rent is $492.00 per week, an increase of 20% in the rent payable under the third tenancy agreement.Decision The order of the Tribunal is that the rent payable by the applicant to the lessor under the residential tenancy agreement entered on 7 September 2023 is reduced from $550.00 per week to $492.00 per week.

Ratio Decidendi

Legal Principle Established

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