Higgins v Impact Real Estate Solutions
[2018] QCATA 86
•4 June 2018
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Higgins v Impact Real Estate Solutions & Ors [2018] QCATA 86
PARTIES:
DESLEE HIGGINS
(appellant)v IMPACT REAL ESTATE SOLUTIONS
(first respondent)
GEOFF HOLLAND
(second respondent)
SUSAN HOLLAND
(third respondent)APPLICATION NO/S:
APL352-17
ORIGINATING APPLICATION NO/S:
MCDT480-17 (Ipswich)
MATTER TYPE:
Appeals
DELIVERED ON:
4 June 2018
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member Howe
ORDERS:
Application for leave to appeal refused.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – leave to appeal – where real estate agent took photographs of rented premises during routine inspections – where special terms of the tenancy agreement allowed photographs of damage or defective items – where tenants’ personal items photographed as ancillary images – where breach of the terms of residential tenancy – where award of compensation only $20 – whether award too little in the circumstances
Queensland Civil and Administrative Tribunal Act2009 (Qld), s 142(3)(a)(i)
Pickering v McArthur [2005] QCA 294
REPRESENTATION:
Applicant:
Self-represented
Respondents:
V Freame, of Impact Real Estate Solutions
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
Deslee Higgins and Rodney Bulmer rented a home at Fernvale from Mr and Mrs Holland. Impact Real Estate Solutions was the agent.
The lease was for a fixed term from 11 February 2016 to 10 February 2017 and the rent was $350 per week. The tenants stayed on after the end date of the fixed term on the same terms and conditions under a periodic tenancy.
The lessors gave 2 months’ notice to leave without grounds and the tenants left on
14 June 2017.
The tenants brought proceedings in the tribunal claiming compensation for various things including breach of the terms of the residential tenancy in the agents taking photographs of the premises during routine inspections. The tenants said the photographs should have been limited to areas showing damage or defective items apparent during the inspection as stipulated by clause 11(1) of the special terms to the tenancy agreement.
The Justices of the Peace who heard the matter agreed that there had been a breach of s 11(1) but awarded only $20 compensation for the breach.
The tenants seek leave to appeal and appeal that decision. The only ground of appeal is the reasonableness of the award of compensation for breach of clause 11(1).
Given this is an appeal from a decision made in the Tribunal’s Minor Civil Dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.[1]
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i).
Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.[2]
[2]Pickering v McArthur [2005] QCA 294, [3].
In the reasons for decision handed down ex tempore at the conclusion of the hearing, the Justices of the Peace found the photographs taken at routine inspections breached s 11(1) of the special terms. They said the provision limited the scope of what could be photographed to those items or things considered defective or damaged.[3]
[3]Transcript 1-30, Line 45.
The Justices of the Peace noted the photographs concerned were a mix, some showing defects but others showing nothing but the good condition of the property.
The Justices of the Peace concluded there had been a breach of the tenants’ privacy but there was little substantial evidence of either the circumstances of breach or deleterious effect of the breach. The Justices of the Peace appear to have concluded that though there was a breach, the breach was not serious and fair compensation in the circumstances for what was effectively a technical breach was $20.
There was no evidence from the tenants about any detriment flowing from the breach. Their complaint was simply that their privacy had been breached by the photographs taken outside the circumstances allowed by clause 11(1).
However a perusal of the photographs show the majority simply depict unblemished walls and floor coverings, clean bathrooms and kitchen area. Some very few out of over 150 photographs tendered also show some possessions of the tenants captured in the photographs but where that occurs it seems to be an accidental adjunct to the true item of depicting the condition of the premises at the time of inspection. What is revealed by the photos is that the tenants were maintaining the house properly in good houseproud condition. The photographs in fact compliment their effort in that regard, if anything.
The agents said taking these sorts of photographs during a routine inspection was standard practice. It appears that where the owner does not attend the routine inspection the photographs are used to inform the owners of the care (or lack thereof) for the lessors’ property being demonstrated by the tenants.[4] Copies of the photographs were made available to the tenants.
[4]Transcript 1-22, Line 3.
There is no error disclosed in the reasoning of the Justices of the Peace. Nor is the award unreasonable in the circumstances. It is difficult to see the breach as any substantial breach of the tenants’ rights of privacy.
The award of the Justices of the Peace of compensation of $20 reflects their view of the lack of significance of the breach. They were entitled to that view. There was no evidence about substantive loss caused the tenants by the breach. Accordingly there is no basis established to set it aside.
Leave to appeal must be refused.
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