I-Sale Property Pty Ltd v Byrne
[2021] QCATA 8
•21 January 2021
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
I-Sale Property Pty Ltd v Byrne & Anor [2021] QCATA 8
PARTIES:
I-SALE PROPERTY PTY LTD
(applicant/appellant)
v
JAMIE WILLIAM BYRNE
(first respondent)
SOPHIE CLAIRE DOYLE
(second respondent)
APPLICATION NO/S:
APL022-20
ORIGINATING APPLICATION NO/S:
MCDT159-19 Brisbane
MATTER TYPE:
Appeals
DELIVERED ON:
21 January 2021
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member Howe
ORDERS:
1. Leave to appeal granted.
2. The appeal is allowed.
3. The order of the Tribunal made 5 December 2019 is set aside and the following order substituted:
4. Jamie William Byrne and Sophie Claire Doyle pay I-Sale Property Pty Ltd within 14 days of the date of this order:
(a) $4,308.57 for rent arrears;
(b) $248.20 for invoice arrears;
(c) $1,520.00 for damages to reinstate the property to a reasonable condition, comprising:
(i) $1,100.00 for cleaning and gardening;
(ii) $320.00 for changing locks; and
(iii) $100.00 for missing sound system.
5. The rental bond of $2,320.00 shall be released to I-Sale Property Pty Ltd forthwith in part payment of that amount.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where tenants claimed compensation for breaches of the tenancy agreement by the lessor – where the agent on behalf of the lessor claimed for arrears of rent and compensation – where the tenants’ claim was based on breaches of which they were aware more than six months before their application to the Tribunal – where the time of application to the tribunal was taken from the time of application for conciliation with the authority – where the tenants were out of time
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 417, s 419
Pickering v McArthur [2005] QCA 294
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented by Y Gamage
Respondents:
Self-represented
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
Mr Byrne and Ms Doyle (‘the tenants’) were tenants of a residential property at Carindale paying $580 per week rent. I-Sale Property Pty Ltd was the lessor’s agent (‘the agent’).
The tenancy was initially for a fixed term of one year commencing 6 August 2017 and ending 4 August 2018, but after that it became periodic on the same terms and conditions.
On 13 April 2018 the tenants served a Form 11 Notice to Remedy Breach in respect of various maintenance issues.
From 26 October 2018 the tenants stopped paying rent and on 19 November 2018 they issued a Form 13 Notice of Intention to Leave effective as and from 3 December 2018.
Despite giving notice of intention to leave the tenants stayed on but without paying rent.
On 14 December 2018 the agent issued a Form 11 Notice to Remedy Breach for rental arrears.
The tenants vacated the property in November 2018 but did not return all keys until 17 December 2018.
On 23 January 2019 the tenants filed a minor civil dispute – tenancy application in the Tribunal claiming $7,192 compensation plus the return of their bond of $2,320.
The agent filed a counter-application on 19 July 2019 claiming rental arrears and compensation in the amount of $7,669.63.
The matter was heard before a Member of the Tribunal on 13 September 2019 with the Member ordering amongst other things the tenants to pay the agent $1,060.57 rent arrears and $1,748.20 for compensation items and ordered the bond be paid out to the agent as well.
The agent seeks leave to appeal that decision.
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.
In the application for leave to appeal the agent raises two complaints. Endeavouring to formulate short but comprehendible grounds of appeal, the agent’s grounds of appeal might be understood as follows:
(a)The Tribunal erred in calculating the arrears of rent at $4,308.57 when in fact they were $4,501.43.
(b)The Tribunal erred in allowing the tenants compensation for repair items when the delay in remedying those defects was due to the tenants restricting access to repairers trying to remedy the defects.
Ground one
The Tribunal erred in calculating the arrears of rent at $4,308.57 when in fact they were $4,501.43.
The agent initially claimed $4,501.43 arrears of rent through to 19 December 2018.
The learned Member assessed the rent due as that over the period 26 October 2018 to 17 December 2018 which was the date the tenants returned the key. That was a period of 52 days. At a weekly rent of $580 per week that totalled $4,308.57.
The agent says there is a two day shortfall in rent. Additionally the agent says the rent increased from $580 per week to $590 per week from 4 October 2018.
The Member found the key had been returned by Express Post by the tenants posted on Friday 14 December 2018. She said the key “would have been received” on Monday 17 December 2018, the next working day.
The evidence given by Ms Gamage at hearing was that the key was actually received on 19 December 2018.[3]
[3]Transcript page 1-5 Line 8.
The Member does not in words reject Ms Gamage’s evidence that the key was received on 19 December 2018 but it seems clear she does not accept it. She identifies, correctly, that the agent’s claim was for rent payable to 19 December 2018 but she also accepted the key was posted by the tenants on Friday 14 December 2018 by Express Post, and determined that the key would have been received on the next working day, Monday 17 December 2018, rather than Wednesday 19 December 2018.
In an affidavit sworn by Ms Doyle in the proceedings below, which affidavit was referred to by the Member during the hearing, Ms Doyle stated that the key was posted by express post to the agent on 14 December 2018. In fact however, according to an email dated Friday 14 December 2018, a copy of which is annexed to the affidavit, Ms Doyle informed the agent that she had posted the key by Express Post even earlier, on Wednesday 12 December 2018.
Australia Post maintains, or did at the material time, that Express Post guaranteed next business day delivery after posting.
The Tribunal is not bound by the rules of evidence[4] and can inform itself in any way it considers appropriate.[5] The Member was entitled to rely on the “next business day” delivery attribute of Express Post in reaching her decision. She concluded that the key would reasonably have been delivered on 17 December 2018. It was not a conclusion unable to be reached on the evidence before the Member. The conclusion that the key would have been delivered on Monday 17 December 2018 was open to the Member. It does not amount to an error by the Member.
[4]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(b).
[5]Ibid, s 28(3)(c).
As to the increase to $590 per week from 4 October 2018, that increase in rent was suggested in an email to the tenants dated 26 July 2018. It amounted to no more than a proposal however, and was subject to the tenants renewing the tenancy. They did not do that. Accordingly there was never any agreed increase in rent. The tenants held over on the same terms and conditions of the fixed term tenancy in respect of rent payable. No additional amount was due the agent as a rent increase.
There is no reasonable prospect of success with respect to this ground of appeal.
Ground two
The Tribunal erred in allowing the tenants compensation for repair items when the delay in remedying those defects was due to the tenants restricting access to repairers trying to remedy the defects.
The tenants complained about delay on the part of the lessor remedying defects. The Member considered their complaints and found that the lessor had failed to ensure the property remained in good repair and was fit for use during the tenancy in breach of the obligations set by s 185(3) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘RTRAA’).
She also found the tenants’ enjoyment of the property had suffered interference by the various repairers attending to remedy defects.
She considered the tenants should be compensated by an amount equivalent to 10% of rent paid, which was $3,248, and allowed that amount to the tenants by setting off rent owed by the tenants to the lessor.
The agent objects to that, principally on the basis that the delay rectifying defects was caused in no small part by the refusal of the tenants to grant reasonable and timely access to tradesmen.
The tenants have not filed submissions about this ground of appeal despite being directed to do so.
The application for residential tenancy dispute filed by the tenants described the order sought in Part C to the application as “Rental rebate - $7,192 (Compensation)”.
A Form 11 Notice to Remedy Breach was served on the agent on 13 April 2018 giving details of the breaches as “Plumbing – Drains/pipes backing up into sinks and toilets. Tap in ensuite leaking.”
In an email of 16 April 2018 the tenants also referred to other maintenance issues outstanding as well such as curtain rails, garage doors, range hood and stove/cook top.
The claim was clearly based on breach of the contract of residential tenancy.
The claim should not have been allowed however. The claim was out of time under the RTRAA legislation which provides:
419 Applications about breach of agreements
(1) This section applies if any of the following claim there has been a breach of a term of a residential tenancy agreement or a rooming accommodation agreement—
(a) a lessor or tenant under the residential tenancy agreement;
(b) a provider or resident under the rooming accommodation agreement.
(2) The lessor or tenant, or provider or resident, may apply to a tribunal for an order about the breach.
(3) The application must be made within 6 months after the lessor or tenant, or provider or resident, becomes aware of the breach.
…
417 Reference to making of tribunal application includes making of dispute resolution request
…
(2) A reference in the provision to the making of an application about the dispute issue includes a reference to the making of a dispute resolution request to the authority about the dispute issue.
Note— Section 419 provides for the time in which the lessor or tenant, or provider or resident, may apply to the tribunal for an order about a breach of the agreement.
The tenants made a dispute resolution request to the Residential Tenancies Authority on 20 November 2011. A date six months before that is 20 May 2018. Any claims for breach of the tenancy agreement in respect of breaches occurring before 20 May 2018 were therefore out of time.
All the breaches complained about by the tenants first arose and came to the attention of the tenants, and indeed most were remedied, before that date six months earlier than the referral for conciliation to the Residential Tenancies Authority.
As such the tenants were not entitled to be compensated for the breaches complained about, and the Member erred in awarding them compensation for the breaches.
That was an error of law.
It is appropriate to grant leave to appeal on this ground and to allow the appeal.
For the reasons given the agent was entitled to recover the full arrears of rent owing of $4,308.57 without any amount set off in favour of the tenants as compensation for breaches of maintenance obligations.
To ensure clarity the appropriate order is to set aside the decision made 5 December 2019 and allow the agent’s claim for all arrears of rent in context of the order made by the Member.
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