Hong v Hutton - [2018] QDC 124

DISTRICT COURT OF QUEENSLAND

CITATION:

Hong v Hutton & Anor [2018] QDC 124

PARTIES:

ROBYN ANN HONG
(plaintiff)

v

PETER JOHN HUTTON and CLAIRE JANE BROPHY
(defendants)

FILE NO/S:

123/2013

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

Cairns

DELIVERED ON:

29 June 2018

DELIVERED AT:

Cairns

HEARING DATE:

5 – 7 December 2016, 15 March 2017

JUDGE:

Morzone QC DCJ

ORDER:

1. Judgment for defendant against the plaintiff.

2. The plaintiff will pay the defendants’ costs of the proceeding (including reserved costs) to be assessed on the standard basis, unless either party applies for a different order within 14 days of this judgment.

CATCHWORDS:

BREACH OF CONTRACT – RESIDENTIAL TENANCY AGREEMENT – where landlords placed stones near the front stairs of their former family home – whether breach of condition to: ensure the premises were fit for a tenant to live in at commencement and; ensure the premises were in good repair at commencement and during the lease; and maintained to remain fit for the tenant to live in - where the plaintiff claims she lost her footing, fell and broke her wrist, and suffered loss and damage - whether the plaintiff failed to clean the premises.

DAMAGES - MEASURE OF DAMAGES – PERSONAL INJURIES – wrist injury – quantum agreed at $125,000.00 including interest.

Legislation:

Residential Tenancies and Rooming Accommodation Act 2008, ss 10, 12, 185.
Property Law Act 1974, s 106.
Residential Tenancies Act 1994, ss 103, 68.
Residential Tenancies Act 1975, s 7.

Cases:

Gration v C Gillan Investments Pty Ltd [2005] 2 Qd R 267
Austin v Bonney [1999] 1 Qd R 114
Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313, 359.
Reliance Permanent Building Society v Harwwod-Stamper [1944] Ch 362
Knueppel v Zarpas [2004] SADC 162
Jones v Bartlett (2000) 205 CLR 166
Sheehy v Hobbs & Anor [2012] QSC 333

COUNSEL:

GJ Houston for the plaintiff

ST Farrell for the defendant

SOLICITORS:

Shine Lawyers for the plaintiff

Mills Oakley for the defendant

It was raining heavily on 5 April 2010 when the plaintiff hurried down her front stairs; fell and broke her wrist after losing her footing on stepping stones placed by the defendant landlords about six years earlier when they lived in the family home.

Although the parties agree on the quantum of damages of $125,000.00 including interest, they dispute whether the defendants breached a residential tenancy agreement to become liable at all.

Background

The defendants bought the house property at 3 Ponticello Street in Whitfield in November or December 2003. They lived there for about five years until January 2009 and thereafter they used real estate agents to let the house until 2015.

The house was built pursuant to a building approval granted in 1974. It is a split level house constructed of rendered besser block, and consists of three bedrooms, a kitchen, a bathroom, a lounge and double lock-up garage. The lock-up garage was accessed externally via a duel driveway, and internally via a door from the kitchen.

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.

Continue reading Hong v Hutton

Details

AGLC: Hong v Hutton [2018] QDC 124
Case: [2018] QDC 124
Decision Date: 29 June 2018

CaseChat Overview and Summary

In the matter of Hong v Hutton, the plaintiff sought damages from the defendants, the former landlords, for injuries sustained after she lost her footing and fell on stones placed near the front stairs of the premises. The dispute centred on whether the defendants breached their contractual obligations under a residential tenancy agreement to ensure the premises were fit for habitation and in good repair at the commencement and throughout the tenancy. The plaintiff argued that the presence of the stones constituted a breach of these conditions, leading to her fall and subsequent injury. The court had to determine if the defendants were liable for the injuries and if the plaintiff’s failure to clean the premises absolved the defendants of responsibility.

The primary legal issue before the court was whether the defendants breached their contractual obligations by placing stones near the front stairs, thereby failing to maintain the premises in a fit and safe condition. The court examined the terms of the residential tenancy agreement, which required the premises to be fit for habitation and in good repair. The plaintiff claimed that the stones constituted a breach of this condition, while the defendants argued that the plaintiff's failure to remove the stones contributed to her fall and injury. The court needed to decide if the defendants' actions were the sole cause of the plaintiff's injuries and if there were any mitigating factors, such as the plaintiff's failure to maintain the premises.

In reaching its decision, the court considered the evidence presented and the terms of the tenancy agreement. It found that the presence of the stones did not necessarily breach the condition to ensure the premises were fit for habitation and in good repair, as the agreement did not explicitly prohibit the placement of such items. Additionally, the court determined that the plaintiff's failure to clean the premises contributed to her fall, thereby reducing the defendants' liability. Consequently, the court ruled in favour of the defendants, finding that they were not liable for the plaintiff's injuries. The court also ordered that the plaintiff pay the defendants' costs of the proceeding.

Orders

Orders of the court

1. Judgment for defendant against the plaintiff.

2. The plaintiff will pay the defendants’ costs of the proceeding (including reserved costs) to be assessed on the standard basis, unless either party applies for a different order within 14 days of this judgment.

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:	Hong v Hutton & Anor [2018] QDC 124
PARTIES:	ROBYN ANN HONG (plaintiff) v PETER JOHN HUTTON and CLAIRE JANE BROPHY (defendants)
FILE NO/S:	123/2013
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	Cairns
DELIVERED ON:	29 June 2018
DELIVERED AT:	Cairns
HEARING DATE:	5 – 7 December 2016, 15 March 2017
JUDGE:	Morzone QC DCJ
ORDER:	1. Judgment for defendant against the plaintiff. 2. The plaintiff will pay the defendants’ costs of the proceeding (including reserved costs) to be assessed on the standard basis, unless either party applies for a different order within 14 days of this judgment.
CATCHWORDS:	BREACH OF CONTRACT – RESIDENTIAL TENANCY AGREEMENT – where landlords placed stones near the front stairs of their former family home – whether breach of condition to: ensure the premises were fit for a tenant to live in at commencement and; ensure the premises were in good repair at commencement and during the lease; and maintained to remain fit for the tenant to live in - where the plaintiff claims she lost her footing, fell and broke her wrist, and suffered loss and damage - whether the plaintiff failed to clean the premises. DAMAGES - MEASURE OF DAMAGES – PERSONAL INJURIES – wrist injury – quantum agreed at $125,000.00 including interest. Legislation: Residential Tenancies and Rooming Accommodation Act 2008, ss 10, 12, 185. Property Law Act 1974, s 106. Residential Tenancies Act 1994, ss 103, 68. Residential Tenancies Act 1975, s 7. Cases: Gration v C Gillan Investments Pty Ltd [2005] 2 Qd R 267 Austin v Bonney [1999] 1 Qd R 114 Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313, 359. Reliance Permanent Building Society v Harwwod-Stamper [1944] Ch 362 Knueppel v Zarpas [2004] SADC 162 Jones v Bartlett (2000) 205 CLR 166 Sheehy v Hobbs & Anor [2012] QSC 333
COUNSEL:	GJ Houston for the plaintiff ST Farrell for the defendant
SOLICITORS:	Shine Lawyers for the plaintiff Mills Oakley for the defendant