Hessey-Tenny v Jones - [2020] QCATA 9

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Hessey-Tenny & Anor v Jones [2020] QCATA 9

PARTIES: RICHARD HESSEY-TENNY

(first applicant/appellant)

and

SADIE HESSEY-TENNY

(second applicant/appellant)

v

HEATH JONES

(respondent)

APPLICATION NO/S:

APL094-18

ORIGINATING APPLICATION NO/S:

Maroochydore MCDT339/17

MATTER TYPE:

Appeals

DELIVERED ON:

31 January 2020

HEARING DATE:

23 August 2019

HEARD AT:

Brisbane

DECISION OF:

Justice Daubney, President

ORDERS:
1.   Leave to appeal is granted.

2.   The appeal is allowed in respect of Ground 1(b) so far as it relates to the laundry repair, cabinet rapid and water pump replacement.

3.   The appeal is allowed in respect of Ground 5(b) so far as it relates to the refilling of the water tank.

4.   The decision of the Tribunal dated 4 April 2018 is amended by deleting the sum of $6,615.50 and inserting in lieu thereof the sum of $3,208.00.

5.   The respondent must refund the sum of $3,407.50 to the appellants.

6.   The appeal is otherwise dismissed.

CATCHWORDS:
LANDLORD AND TENANT – TERMINATION OF THE TENANCY – BY NOTICE TO QUIT – NOTICE BY TENANT TO LANDLORD – where the applicants were the tenants of a property – where the respondent was the landlord of the property – where the applicants issued a notice to remedy breach – where the property had alleged unresolved sewage issues, non-functioning toilets and other ongoing faults – where the applicants issued a notice of intention to vacate the property – where the applicants and respondent sought to agree to terminate the tenancy and not make further claims – where the applicants applied to the Queensland Civil and Administrative Tribunal (‘QCAT’) seeking orders under ss 94, 185, 419 and 420 of the Residential Tenancies and Rooming Accommodation Act 2008 (‘RTRAA’) – where the respondent filed a counter-application – where the applicants’ application was dismissed and the respondent’s counter-application was partially allowed – where the applicants applied for leave to appeal the decision of the Tribunal to the Appeal Tribunal of QCAT – whether the Tribunal erred in holding that s 416 of the RTRAA was satisfied – whether the respondent’s claims were out of time – whether the Tribunal erred in fact regarding the applicants’ liability for a pump failure and septic tank misuse – whether the Tribunal erred in fact regarding the existence of a mutual termination agreement

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – DENIAL OF NATURAL JUSTICE – where the applicants allege they were not given a proper opportunity to understand or respond to a maintenance report prior to the commencement of the tenancy – where the maintenance report was subsequently provided to the Tribunal and the applicants at the hearing – whether the lack of opportunity to understand or respond to the report prior to the commencement of the tenancy constitutes a denial of natural justice and procedural fairness

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – WHEN APPEAL LIES – ERROR…

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 9
Decision Date: 31 January 2020

CaseChat Overview and Summary

In the matter of Hessey-Tenny v Jones, the tenants, the applicants, sought relief from the Queensland Civil and Administrative Tribunal (QCAT) regarding their tenancy of a property. They alleged unresolved sewage issues, non-functioning toilets, and other ongoing faults. After issuing a notice to remedy the breaches, they notified the landlord of their intention to vacate and subsequently sought to agree to a termination of the tenancy without further claims. The applicants sought orders under the Residential Tenancies and Rooming Accommodation Act 2008 (RTRAA) for various reliefs, while the landlord filed a counter-application. The applicants' application was dismissed, and the landlord's counter-application was partially allowed. The applicants then sought leave to appeal the Tribunal’s decision to the Appeal Tribunal of QCAT.

The appeal raised several issues, including whether the Tribunal erred in its interpretation of section 416 of the RTRAA, whether the landlord’s claims were out of time, and whether the Tribunal erred in fact regarding the applicants’ liability for a pump failure and septic tank misuse. Additionally, the applicants argued that the Tribunal erred in fact regarding the existence of a mutual termination agreement. The applicants also contended that the Tribunal denied them natural justice and procedural fairness by not providing them with a maintenance report prior to the commencement of the tenancy and by not providing them with copies of a phone conversation transcript and subsequent emails despite their requests.

The Appeal Tribunal allowed the appeal in part, finding that the Tribunal had erred in its factual findings regarding the laundry repair, cabinet rapid, water pump replacement, and the refilling of the water tank. Consequently, the sum awarded to the landlord was reduced, and the landlord was ordered to refund a portion of the amount to the applicants. The Tribunal held that the applicants had not been denied natural justice or procedural fairness, and there was no apprehension of bias on the part of the Tribunal Member. The appeal was otherwise dismissed.

The final orders of the Appeal Tribunal were that leave to appeal was granted, the appeal was allowed in respect of certain factual errors, the Tribunal’s decision was amended to reflect the corrected sum owed, and the landlord was ordered to refund a portion of the amount to the applicants. The appeal was dismissed in all other respects.

Orders

Orders of the court

1. Leave to appeal is granted.

2. The appeal is allowed in respect of Ground 1(b) so far as it relates to the laundry repair, cabinet rapid and water pump replacement.

3. The appeal is allowed in respect of Ground 5(b) so far as it relates to the refilling of the water tank.

4. The decision of the Tribunal dated 4 April 2018 is amended by deleting the sum of $6,615.50 and inserting in lieu thereof the sum of $3,208.00.

5. The respondent must refund the sum of $3,407.50 to the appellants.

6. The appeal is otherwise dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Hessey-Tenny & Anor v Jones [2020] QCATA 9
PARTIES:	RICHARD HESSEY-TENNY
(first applicant/appellant)
and
SADIE HESSEY-TENNY
(second applicant/appellant) v
HEATH JONES
(respondent)
APPLICATION NO/S:	APL094-18
ORIGINATING APPLICATION NO/S:	Maroochydore MCDT339/17
MATTER TYPE:	Appeals
DELIVERED ON:	31 January 2020
HEARING DATE:	23 August 2019
HEARD AT:	Brisbane
DECISION OF:	Justice Daubney, President
ORDERS:	1. Leave to appeal is granted. 2. The appeal is allowed in respect of Ground 1(b) so far as it relates to the laundry repair, cabinet rapid and water pump replacement. 3. The appeal is allowed in respect of Ground 5(b) so far as it relates to the refilling of the water tank. 4. The decision of the Tribunal dated 4 April 2018 is amended by deleting the sum of $6,615.50 and inserting in lieu thereof the sum of $3,208.00. 5. The respondent must refund the sum of $3,407.50 to the appellants. 6. The appeal is otherwise dismissed.
CATCHWORDS:	LANDLORD AND TENANT – TERMINATION OF THE TENANCY – BY NOTICE TO QUIT – NOTICE BY TENANT TO LANDLORD – where the applicants were the tenants of a property – where the respondent was the landlord of the property – where the applicants issued a notice to remedy breach – where the property had alleged unresolved sewage issues, non-functioning toilets and other ongoing faults – where the applicants issued a notice of intention to vacate the property – where the applicants and respondent sought to agree to terminate the tenancy and not make further claims – where the applicants applied to the Queensland Civil and Administrative Tribunal (‘QCAT’) seeking orders under ss 94, 185, 419 and 420 of the Residential Tenancies and Rooming Accommodation Act 2008 (‘RTRAA’) – where the respondent filed a counter-application – where the applicants’ application was dismissed and the respondent’s counter-application was partially allowed – where the applicants applied for leave to appeal the decision of the Tribunal to the Appeal Tribunal of QCAT – whether the Tribunal erred in holding that s 416 of the RTRAA was satisfied – whether the respondent’s claims were out of time – whether the Tribunal erred in fact regarding the applicants’ liability for a pump failure and septic tank misuse – whether the Tribunal erred in fact regarding the existence of a mutual termination agreement APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – DENIAL OF NATURAL JUSTICE – where the applicants allege they were not given a proper opportunity to understand or respond to a maintenance report prior to the commencement of the tenancy – where the maintenance report was subsequently provided to the Tribunal and the applicants at the hearing – whether the lack of opportunity to understand or respond to the report prior to the commencement of the tenancy constitutes a denial of natural justice and procedural fairness APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – WHEN APPEAL LIES – ERROR…