Kaya & Kaya v Vosmaer
[2022] QCATA 23
•16 February 2022
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Kaya & Kaya v Vosmaer & Ors [2022] QCATA 23
PARTIES: SHERIF KAYA
ERDOGAN KAYA(appellants)
v
SUSAN TOMARA VOSMAER
ANTIONETTE VOSMAER
JAY HUSEJKO
CANDICE EVERETT(respondents)
APPLICATION NO/S:
APL075-21
ORIGINATING APPLICATION NO/S:
MCDT 14-/21 (Southport)
MATTER TYPE:
Appeals
DELIVERED ON:
16 February 2022
HEARING DATE:
25 January 2022
HEARD AT:
Brisbane
DECISION OF:
Member Gordon
ORDERS:
1. Leave to rely on fresh evidence is refused.
2. Leave to appeal is refused. This means that the appeal fails.
CATCHWORDS:
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN NO APPEAL LIES – where the lessors appeal against a decision made in a residential tenancy dispute – where the grounds of appeal are that the Adjudicator must have overlooked the lessors’ evidence and that fresh evidence ought to be admitted – whether any reasonably arguable grounds of appeal
Residential Tenancy and Rooming Accommodation Act 2008 (Qld), s 183, s 185
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
Self-represented
REASONS FOR DECISION
Susan and Antionette Vosmaer and Jay Husejko and Candice Everett were tenants of premises on the Gold Coast under a two year fixed term residential tenancy agreement at a weekly rent of $895. Sherif and Erdogan Kaya were the lessors under the agreement.
The tenancy started on 7 October 2020 and ended after only seven weeks on 24 November 2020.[1] There seems to be some confusion about whether it was mutually agreed that the tenancy should end early in this way. At the hearing it was said by the property managers on behalf of the lessors that it had been mutually agreed, but in their submission to the Appeal Tribunal the lessors said this was not the case.[2] After the end of the tenancy, the tenants brought a residential tenancy claim against the lessors seeking compensation for various breaches of the tenancy agreement.
[1]Transcript 1-3 line 42.
[2]Page 5 of submissions dated 18 May 2021.
One of the alleged breaches was that the premises were not clean at the commencement of the tenancy. Another was that one of the lessors was constantly at the premises and indeed was living in, or using, a shed at the rear of the property. Another alleged breach was that there was excessive moisture in the bathroom, dining room and shower wall cavities. During the tenancy there was a storm and it was said that these areas were flooded again.[3] The tenants’ case was that a defective roof was to blame for the water ingress.[4]
[3]Transcript 1-15 line 29.
[4]Transcript 1-15 line 41.
Both sides filed a lot of documents in the tribunal and the matter was listed before an Adjudicator for hearing. At the hearing, the lessors were represented by property managers and two of the tenants appeared, representing the other two tenants.[5]
[5]Transcript 1-16 line 39.
The Adjudicator heard from both sides and made a decision that:
(a)One of lessors had been using the sheds at the rear of the premises throughout the tenancy, and this had compromised the peaceful enjoyment of the premises. This was a breach of section 183 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRAA).
(b)The tenants paid for the lessors’ use of electricity and water in sheds at the rear of the premises.
(c)The condition of the premises at the start of the tenancy breached section 185(1) of the RTRAA.
(d)The condition of the premises during the period of the tenancy breached section 185(2) of the RTRAA.
The Adjudicator found that the tenancy ended by mutual agreement.[6]
[6]Transcript 1-25 line 10.
Having made those findings, the Adjudicator allowed some of the heads of claim, declined to award others and reduced the award claimed for others. The Adjudicator ordered the lessors to pay to the tenants a total of $4,696.87 including the filing fee.
In this appeal brought by the lessors, it is said that the Appeal Tribunal should look at ‘fresh’ evidence from the lessors, which would be persuasive to show that the decision made by the Adjudicator was incorrect.
The lessors were directed by the Appeal Tribunal to file submissions showing in what way the Adjudicator was in error of law or fact. In response to this direction they filed submissions on 18 May 2021. They said that the Adjudicator only had 15 minutes prior to the hearing to read the large number of documents which had been submitted and did not have enough time allocated to hear the case. This resulted in the Adjudicator overlooking important information and causing an injustice.
The appeal submissions did not identify what evidence was overlooked by the Adjudicator. In the appeal hearing I asked the lessors to identify this evidence. I also asked the lessors to identify the ‘fresh’ evidence which they wanted the Appeal Tribunal to consider from the large amount of material which had been filed with the Appeal Tribunal. The lessors had difficulty doing both these things because they were not present at the original hearing and had relied on the property managers to represent them.
The lessors said that they had not seen the material put before the Adjudicator by the property managers, so they did not know whether the Adjudicator saw the evidence they now wished to put before the Appeal Tribunal. Doubt about this was expressed by the tenants and having reviewed the paperwork in more detail I tend to agree with this doubt because the lessors do refer by page number to the material lodged with the tribunal by the property managers on their behalf.[7]
[7]Examples of such references are in the application for stay which seemingly was lodged by the lessors themselves, page 1a; and documents attached to the two emails of 1 September 2021 sent to the tribunal.
Overall, the lessors’ position in the appeal is that since the Adjudicator made a decision with which they disagreed, therefore:
(a)in so far as the lessors’ evidence showing a different state of affairs was before the Adjudicator, it must have been overlooked by the Adjudicator; and
(b)in so far as the lessors’ evidence showing a different state of affairs was not before the Adjudicator, they should be permitted to put it before the Appeal Tribunal to correct an injustice.
The lessors have received a recording of the Adjudicator’s reasons and the Appeal Tribunal has obtained a transcript of the whole hearing, including those reasons.
It is true as the lessors say, that the Adjudicator had only a short time to read the paperwork before the parties came into the hearing, but in the hearing the Adjudicator confirmed having read all of them.[8] Bearing in mind that, as can be seen from the minor civil dispute file, the property managers had lodged some 541 pages of documents (some of which were two sided) and the tenants had lodged some 69 pages, to the lessors it might appear to have been an impossible task for the Adjudicator to consume all that information sufficiently to do justice to the case. The truth is however, that much of the material was duplicated in the two bundles of documents,[9] some was for reference only and could quickly be skipped over,[10] and each side had provided summaries of their respective cases with references to the relevant documents. It was those summaries which no doubt the Adjudicator concentrated on, while noting the existence of the other documents.
[8]The Adjudicator confirmed this during the hearing: transcript 1-4 line 40, and also when giving reasons: transcript 1-24, line 43.
[9]For example each side had provided the tenancy agreement, condition reports, and breach notices.
[10]For example there were several sequences of photographs, and long sequences of internal real estate documentation and emails.
Adjudicators are very skilful at quickly finding the most relevant documents and reading them sufficiently in a short space of time to be able to hear from the parties on the specific issues which arise in a particular matter. That this was the case here is demonstrated from the hearing itself. The Adjudicator was acquainted with the issues and was able to illicit from the parties their position on those issues and give them an opportunity to direct the Adjudicator’s attention to the salient documents on those issues.
It is insufficient to argue in this appeal that since the Adjudicator reached the wrong conclusion, therefore this must have been because the Adjudicator did not have sufficient time to reach the correct conclusion – the implication being that there was not a fair hearing. Unless demonstrated otherwise, the Appeal Tribunal will rely on the Adjudicator’s discretion whether or not to proceed to hear a case and to make a decision when time is short. It is often the case that an Adjudicator will decide that a fair result cannot be achieved in the time allotted, and the Adjudicator will adjourn it to another day, or will reserve it to be determined on the papers, having heard the parties argue the issues in the hearing. There can be no suggestion in this matter that the Adjudicator was anything but satisfied that a fair result could be achieved in the time allowed.
In this appeal, the findings made by the Adjudicator are all challenged.
On order properly to consider the application to put fresh evidence before the Appeal Tribunal, I need to deal with the findings one by one.
In looking at this, I would point out that in the tribunal below, the tenants’ claim was supported by a statement and supporting documents. One of those documents was a response to the tenants claim in which the property managers commented upon each part of the claim. Then in a ‘counter application’ filed on 23 February 2021, the lessors lodged with the tribunal a more comprehensive response including the 541 pages referred to above.
The ‘fresh’ evidence which the lessors wish to put before the Appeal Tribunal is contained in more than one application. The first is an application made on 23 March 2021 to stay the Adjudicator’s order. In that application it was said:
I would like to appeal new hearing based on new evidence supplied to support claim.
And in another part of that application it was said:
I have new evidence to prove that a lot of false information was given by the tenant. Therefore I would like to appeal this case based on new evidence.
There were 62 pages of what purports to be fresh evidence accompanying the application for a stay.
On 12 April and again on 30 June 2021 the Appeal Tribunal gave directions to cover the possibility of the lessors wishing to rely on fresh evidence. They were required to apply formally to do so, explaining why the fresh evidence was not available to the tribunal below, why it is important and why it should be accepted. On 20 July 2021 the lessors made such an application but did not explain why the fresh evidence was not available to the tribunal below. Indeed the submissions seem to say that it was all available at the time of the hearing. This new batch of fresh evidence was attached to an email sent on 19 July 2021 and two emails sent on 1 September 2021 (11.20pm and 11.21pm).
Most of the fresh evidence simply repeats what was already said by the lessors or on their behalf in the original hearing, but there is some fresh evidence which was not before the Adjudicator.
As a general point it must be said that a party cannot simply appeal or ask for a review of a tribunal decision because of fresh evidence. It is up to the party to ensure that all its evidence is available at the first hearing. If this were allowed to happen as a matter of course, then all cases would require two hearings to be resolved. The first to get the view of one decision maker and the second to see, on fresh evidence, whether the first decision was correct. This is why appellants are not usually entitled to try to rely on fresh evidence in an appeal without a good explanation why it was not put before the hearing below, and also unless it is shown to be relevant to the issues in the appeal.
I now turn to the Adjudicator’s findings to see whether the points made on appeal have any validity, and to see whether any fresh evidence on these matters should be admitted.
Breach of covenant of quiet enjoyment
The obligation under section 183 of the RTRAA is:
(1) The lessor must take reasonable steps to ensure the tenant has quiet enjoyment of the premises.
(2) The lessor or lessor’s agent must not interfere with the reasonable peace, comfort or privacy of the tenant in using the premises.
The tenants’ evidence at the original hearing was that one of the lessors was using the sheds at the rear of the premises throughout the tenancy, and this was all day and every day starting from 6 or 7am and continuing to 5 or 6pm, over which time they had deliveries to the house, with constant noise from electric power tools and excavation machinery, and concerns about their privacy. The lessor’s mail was being delivered at the house and he would check the mailbox every day.[11] This evidence was supported by contemporaneous emails complaining about it.[12]
[11]Tenants’ addendum A.
[12]Emails of 17 and 31 October 2020.
The tenants said that they knew that they could not use the sheds but that nothing was said about the land on which the sheds sat and there was nothing in the tenancy agreement about this, the implication being that the land used for access to the sheds and the land on which the sheds sat were in fact part of the tenancy.[13]
[13]Paragraphs 1 and 8 of the tenants’ statement.
For the lessors, when dealing with the tenants’ complaints during the tenancy, it was accepted that the lessor used power tools but it was said that this happened within the hours allowed by the Council,[14] and that since the sheds were separated by a fence the lessor did not have to give notice of his attendance there, but the property managers said they would ask the lessor to cease checking the mailbox but that the tenants were asked to put his mail aside.[15] In their written material lodged with the tribunal, the lessors said that the advertising material for the rental showed that the sheds were ‘excluded’.[16] During the hearing, the property manager pointed out that the tenants had seen the lessor at the rear of the property when they inspected and knew that he had an ‘orchard or whatever’ at the rear. However, the tenants said that they were not aware of that and would not have taken the lease if they had known, bearing in mind one of the tenants was a night worker and there was an elderly person at the premises too.[17]
[14]Page 9.
[15]Lessors written comments to tenants’ addendum A.
[16]Page 3 and pages 83 to 102.
[17]Transcript 1-13 line 47, 1-14 line 25.
At the hearing there was a discussion about the advertising material, and it was pointed out that the sheds were on a fenced off area of land with a separate entrance. However during the hearing the Adjudicator expressed the view that the advertising material could not be relied on because it ought to be stated in the lease that someone was going to be coming and going out to the back of the property and using that part exclusively.[18]
[18]Transcript 1-13 line 36.
The Adjudicator accepted the tenants’ evidence that the sheds were used daily by one of the lessors and found that this compromised the quiet and peaceful enjoyment of the premises, and in the case of one of the tenants who worked night shifts it interrupted her sleep.[19] As stated during the hearing, the Adjudicator reiterated the view that where a lessor wished to reserve a right to use part of the premises then this should be in the tenancy agreement and it was insufficient to have this only in the advertising material.[20]
[19]Transcript 1-25 line 27.
[20]Transcript 1-25 line 34.
The tenants also alleged that there were several repairs done by the lessor which were unannounced, until the tenants refused to permit these, and wardrobe doors were replaced without their consent.[21] In reply, the lessors contended that the tenants had asked for replacement of the wardrobe doors and so did consent to this work. The Adjudicator made no findings on this allegation. The finding about the breach of covenant of quiet enjoyment was limited to the use of the sheds.
[21]Paragraphs 7 and 9 of the tenants’ statement, supported by email of 30 October 2020.
There is some fresh evidence about a discussion between the lessors and the tenants about the use of the sheds prior to entering into the agreement.[22] This fresh evidence is irrelevant however, because the Adjudicator decided that the prior discussions could not affect the contractual arrangements reached between the parties, which appeared solely in the tenancy agreement. There is no appeal from that finding.
[22]Paragraph 6, page 1 of stay application.
There is fresh evidence about the lessors’ discussions with a different prospective tenant.[23] This is also irrelevant.
[23]Paragraph 9, page 1 of stay application.
There is fresh evidence from the lessor who is alleged to have checked the mailbox every day. That lessor now says that he has not checked the mailbox for 48 years.[24] Since the allegation about checking the mailbox was in the application itself, this evidence could have been put before the Adjudicator at the hearing and there is no explanation why this was not done.
[24]Handwritten material on page 1e of the stay application.
There is fresh evidence from the lessors about a conversation with one of the tenants in which one of the lessors offered to replace the wardrobe doors and the tenant was ‘happy with that’, and further evidence about how this work was arranged.[25] Since the Adjudicator did not base the decision that there had been a breach of the covenant of quiet enjoyment on the replacement of the wardrobe doors without the tenants’ consent, this fresh evidence is irrelevant.
[25]Page 17 of stay application.
There is fresh evidence from the lessors about the extent of deliveries to the house for the lessor who used the sheds at the rear. It is said that there were only three deliveries during the tenancy, and this was shown from the lessor’s credit card statements and the delivery dockets.[26] Again there is nothing to explain why this evidence was not available at the hearing bearing in mind it was known that the tenants were complaining about deliveries to the house.
[26]Pages 29 to 37 of stay application.
There is fresh evidence from the lessors about the use of an excavator and power tools showing the dates when machines were hired.[27] Again there is nothing to explain why this evidence was not available at the hearing bearing in mind it was known that the tenants were complaining about the use of excavators and power tools.
[27]Pages 38 to 42 of stay application.
There is fresh evidence from the lessors about the view overlooking the house and about the work done by the lessor at the rear of the premises,[28] and about the background of the lessors including character references,[29] but this does not appear to be relevant.
[28]Pages 43 to 50 of stay application.
[29]Pages 51 to 62 of stay application.
In the circumstances, none of the fresh evidence relied on under this head should be admitted.
One point made in the appeal is that the lessors do not accept that one of the tenants works nights. Since the tenant’s pay slips were before the Adjudicator to support a loss of wages claim, the lessors have been able in their appeal submissions to analyse the possibility of the tenant concerned working nights and have concluded that she does not.[30] In response to this, the tenants have submitted the timesheets of the tenant concerned and a letter from her employer describing her late shift as a ‘night shift’.[31] The lessors have responded with a critique of the timesheets,[32] and photographs showing the opening times of the tenant’s place of work.[33] The lessors’ position is that the tenant concerned would finish work at 2am.
[30]Appeal submissions received 20 July 2021, paragraph 5.
[31]Appeal submissions received 12 August 2021.
[32]Email of 1 September 2021 11.21pm.
[33]Documents attached to email of 19 July 2021.
The Adjudicator in the hearing was informed that the tenant concerned worked ‘nights’, and as far as I can see it had not been raised before as an issue. This means that it would have been difficult for the lessors or their agents to analyse the correctness of the assertion in the time available in the hearing.
The Adjudicator’s concerns about this were that the tenant who worked nights had her sleep interrupted, which would still be the case even if it is right as the lessors say that the tenant finished work at 2am. This is because on the tenants’ evidence, which the Adjudicator accepted, the noise started very early in the morning. On that basis the fresh evidence is not significant enough to be admitted and to require me to give leave to appeal.
Tenants paying for lessors’ use of electricity and water
The evidence about this came from the tenants who claimed that the sheds used their power and water.[34]
[34]Paragraph 7 of the tenants’ statement.
The lessors’ response to this was that the electricity and water were separately metered,[35] and indeed the electricity was on a separate 3-phase supply. This was discussed at the original hearing. At first the property manager, referring the Adjudicator to a photograph of the 3-phase meter,[36] said that the number of that meter was not on the electricity bill but accepted after some discussion that in fact it was on the bill.[37]
[35]Lessors written comments to tenants’ addendum A.
[36]Page 513.
[37]Transcript 1-20.
The Adjudicator found that although there was a separate meter for the electricity used in the sheds, the tenants were correct that this use appeared their bill.[38]
[38]Transcript 1-25 line 23.
The fresh evidence includes a calculation based on meter readings of the lessors’ share of the electricity bill for the 3-phase supply to the sheds and this comes to much less than the $98.66 awarded by the Adjudicator.[39] Although the lessors do not explain this, the probable reason why this was not calculated before was that the lessors’ case was that the 3-phase supply charges were not on the tenants’ bill at all. The difficulty is that having taken that stance, which was departed from at the hearing, the lessors were left with no evidence of their own about the true value of this claim. It is too late to raise this at an appeal stage. It should have been argued in the original hearing.
[39]Document attached to email of 1 September 2020 11.20pm.
The evidence at the hearing about the shed’s water also being paid by the tenants came from the tenants. There was an email in the lessors’ material stating that the sheds did not have access to the mains water feeding the house,[40] but that was not consistent with a written submission before the Adjudicator that it was separately metered.
[40]Page 519.
When giving reasons, the Adjudicator considered that the shed was probably plumbed for a conventional supply of town water.[41]
[41]Transcript 1-26 line 34.
The fresh evidence includes a letter from a plumber stating that ‘there was no evidence of … mains water supply to the rear garden shed or surrounding area’ and that the main house water supply was isolated to the liveable dwelling only.[42] This letter is not dated, so may have been in existence at the hearing. In any case there is no explanation why it was not available at the hearing bearing in mind it was known that the tenants were complaining that they had paid for the lessors’ water usage. For these reasons and bearing in mind the award in respect of water usage was only $39.31, I do not grant leave for this to be put before the Appeal Tribunal as fresh evidence.
[42]Application for a stay, page 14.
Breach of section 185(1) (at start of tenancy)
The obligation under section 185(1) of the RTRAA is:
At the start of the tenancy, the lessor must ensure (a) the premises and inclusions are clean; and (b) the premises are fit for the tenant to live in; and (c) the premises and inclusions are in good repair.
It was common ground that the original start date for the lease was 2 October 2020 but this had to be changed to 7 October 2020 so that the premises could be put in a reasonable condition.
Even after the change of the start date to 7 October 2020, according to the tenants they had to wait another day because the house was still not clean, the carpets had not been cleaned, and some work had not been done. This evidence was supported by contemporaneous emails and an entry condition report.
The lessors admitted that the property managers were unhappy with the professional cleaning done prior to 7 October 2020, and so there was another six hours spent cleaning. It was agreed that the carpets were not professionally cleaned but it was said that they were in good condition. The lessors said there were a list of things attended to in the week prior to 7 October 2020, including the installation of two ‘new’ air conditioning units and five replaced fans, and professional cleaning of the existing two air conditioning units.[43]
[43]Page 5, said to be supported by invoices on pages 191 and 381.
The tenants said however, that the two air conditioner units had been replaced with used units rather than new ones and they were ‘full of mould’ like the ones replaced, and on enquiry they were denied information about who had installed them.[44] The invoice for the installation of these units was available at the hearing and showed that they were indeed used rather than new.[45] On 19 November 2020 the tenants complained that they contained mould and this was dealt with by cleaning.[46]
[44]Paragraphs 2, 3 and 5 of the tenants’ statement.
[45]Page 381.
[46]Page 389 for the cleaning invoice and page 479 for the report.
It was the lessors’ case that one of the tenants said that they were ‘very happy’ with the condition of the premises when moving in and then there was no communication from the tenants about the condition of the property until the storm, as could be seen from the property managers’ report log.[47] This was also a point made at the hearing, although the tenant concerned said that all he had said was that the premises looked ‘ok’.[48]
[47]Page 5.
[48]Transcript 1-8 lines 27 and 47.
The tenants had other complaints. They said that they suspected that the electrical wiring was not compliant and the main bedroom circuit kept tripping the circuit breaker. The door to the ensuite in the main bedroom was rotten and loose and covered with duct tape and there were loose tiles on the step to the shower, the main lounge fan would not work on full speed and the pool cleaner was held together with duct tape.[49] The main wall frame to the robe in the third bedroom was not secure and moved. A continuous leak from the fittings in the ensuite in the small bedroom had caused swelling of the cabinet. The dishwasher was rusty and they did not use it. The bedroom doors and laundry doors could not be closed.
[49]Tenants’ addendum A.
The lessors’ initial response to the above matters when they were raised during the tenancy was either to ask for further evidence about them or to say they were satisfactory.[50]
[50]Lessors’ response to tenants’ addendum A.
At the hearing, the property manager referred the Adjudicator to the additional work orders for cleaning required before the tenant could move in,[51] and the additional cleaning required even after the professional cleaning.[52] There was some discussion with the tenants about whether it had in fact been done or done properly,[53] and the property manager admitted that even then ‘most parts of the house were clean’,[54] but drew the Adjudicator’s attention to their photographs taken immediately after that cleaning had been done,[55] and the Adjudicator compared these with photographs taken by the tenants.
[51]Transcript 1-5 line 29.
[52]Transcript 1-9 line 33.
[53]Transcript 1-6 line 25 onwards.
[54]Transcript 1-10 line 12.
[55]Pages 271 to 281, transcript 1-11 line 47.
It can be seen from the reasons given by the Adjudicator that the section 185(1) obligation was tested on 2 October 2020, being the original agreed date for the start of the fixed term of lease, and not the date as varied, 7 October 2020.[56] This must have been because, as the Adjudicator noted during the hearing, the tenants were unable to move in on the original date because of the state of the premises.[57] The Adjudicator considered that the lack of cleanliness on 2 October 2020 was ‘manifest’. Clearly there was substantial evidence on which the Adjudicator could reach the conclusion that there had been a breach of section 185(1).
[56]Transcript 1-25 line 17.
[57]Transcript 1-5 line 13.
As for fresh evidence, the lessors would seem to wish to say that the contractor who installed the air conditioning units prior to the tenants moving in told them that they had been cleaned before installation. But this is not fresh evidence because somebody had written this information by hand on the invoice concerned, which was before the Adjudicator.[58]
[58]Top of page 381.
There is fresh evidence showing that the dishwasher was purchased in December 2018.[59] There is nothing to show however, that the rusty dishwasher was an important issue in the Adjudicator’s decision so this would seem to be irrelevant.
[59]Documents attached to email of 19 July 2021.
In the circumstances none of the fresh evidence relied on under this head should be admitted.
Breach of section 185(2) (during the tenancy)
The obligation under section 185(2) of the RTRAA is:
While the tenancy continues, the lessor (a) must maintain the premises in a way that the premises remain fit for the tenant to live in; and (b) must maintain the premises and inclusions in good repair.
The tenants described water coming into the bathroom ‘like rainfall’ during a storm on 28 October 2020 because of a leaking roof, causing water to accumulate in the main bathroom, the ensuite, laundry and office, and causing two ceilings to sag, damage to light fittings and cracked tiles, and causing the ensuite in the small bedroom to come away from the wall, and causing tiles to fracture around the shower, but no repair was done.[60] They described the roof as ‘still sagging in many areas’, daylight could be seen through the roof, and mould patches were coming through.[61]
[60]Paragraph 11 of the tenants’ statement and tenants’ addendum A.
[61]Tenants’ addendum A (two parts).
When these complaints were made during the tenancy, the lessors’ response was that damage from the storm was subject to an insurance claim and was in the hands of ‘the builders and insurance company’, and so those issues which had not been reported before needed photographs with a date and time stamp so that they could be passed on to the insurers.[62]
[62]Lessors written comments to tenants’ addendum A.
The lessors’ case is that the premises were made safe and liveable and the insurance claim was lodged very quickly. Hence they should not bear any liability. This was supported by relevant documents including a description of the damage caused by the storm and consequential documentation.[63] From these documents it can be seen that the precautionary and immediate action included closing the main bathroom, and installing dehumidifiers in the bathroom, main bedroom, laundry and dining room.
[63]Pages 301 to 375.
The documents show that the tenants had particular concerns about mould developing for health reasons, and that it took some time for the premises to recover. There is an email from the contractors dated 2 November 2020 stating that the bulkhead in the bathroom had ‘shown no improvement in drying’ because the tenants had run the dehumidifier for only 10 hours over that time, that the wall between the bathroom and the dining room was ‘wet’ and required drying with the use of a special machine to get airflow into the wall cavity and to dry the wet gyprock, and this was also required to dry the back of the bathroom wall (tiled and cabinetry).[64] However, it was noted in that email that the laundry was by that time dry. The contractors noted that:
Mould is a likely outcome if the property is left wet.
[64]Page 365.
The lessors relied on a mould report which had been commissioned by the tenants the day after the storm and which showed that there was no mould at the property, although the tenants pointed out at the hearing that there was no inspection of the cavities or areas covered by insulation.[65]
[65]Page 341, transcript 1-23 line 26.
There seems to have been an issue between the parties as to whether the roof was in disrepair prior to the storm. In that respect, at the hearing the tenants pointed out that in the lessors’ material there was a timber pest inspection report done about three weeks before they moved in which found evidence of high moisture in the area of the bathroom, dining room and shower wall cavities requiring further investigations by a licensed plumber.[66] In their fresh evidence, the lessors seek to explain that this water ingress was traced to a down pipe blockage which was cleared.[67]
[66]Page 167, referred to: transcript 1-15 line 27.
[67]Document attached to email of 1 September 2021 at 11.20pm.
The fact is that there was an abundance of evidence before the Adjudicator showing the roof was in disrepair prior to the storm.
The evidence comes from an insurers’ report three days after the storm. The report was not in the original material before the Adjudicator, but it was referred to in an email on 20 November 2020 which was before the Adjudicator as follows:[68]
The lead flashing around the skylight needs to be removed and replaced, sealed correctly to ensure water ingress does not re-occur.
Valley tiles above the bathroom have slipped and need to be reinstated to ensure water can flow into the gutters.
Several roof tiles are cracked and require replacing.
We note that the cause of the water ingress was due to maintenance related issues and upon receipt of the revised report/quotation we will report again to insurers seeking their intentions towards the claim.
The maintenance repairs will be required to be undertaken to the lead flashing, valley tiles and tiles replaced before any internal repairs can be undertaken and also to minimise any further water ingress.
[68]Page 349.
That the internal flooding in the storm was caused by leaks in the roof was accepted at the hearing by the property manager.[69]
[69]Transcript 1-15 line 41.
It is clear that the roof was in disrepair at the start of the tenancy to such an extent that the house was unable to withstand a typically severe Queensland storm. The defective roof was not repaired while the tenants remained at the premises,[70] so there could easily have been another flood. But the lessors’ position was that there was no breach because ‘insurance take a little while to go through and get done’.[71]
[70]This was the tenants’ evidence and is also shown by an email dated 21 November 2020 on page 352 in which the lessors say that the roof will be attended to ‘this week’ (that is, after the tenants have left the premises).
[71]Transcript 1-23 line 2.
In addition to this, the damage to the premises caused by the water ingress was not repaired while the tenants remained at the premises either.[72]
[72]This was the tenants’ evidence and is shown by a scope of works dated 24 and 25 November 2020 pages 383 to 385.
The Adjudicator found that although efforts were made to attend to the problems arising from the storm, there were associated problems involving dampness in the cavity walls. The dampness fostered mould, or the propensity for mould growth.[73] Although the Adjudicator did not expressly refer to the defective roof it seems to be implicit from the way that the quantum of compensation was assessed, at half the rent over whole period of the tenancy, that the Adjudicator worked on the basis that there was a serious breach of the tenancy agreement throughout the tenancy because of the defective roof and because of the failure to give quiet enjoyment.
[73]Transcript 1-25 line 40.
In the appeal it seems to be said that acting quickly to make the premises safe and to lodge an insurance claim would be sufficient to satisfy the obligation under section 185(2) of the RTRAA. This is incorrect. Since the roof was in disrepair at the start of the tenancy there was a breach at that time, and that breach continued. This is quite independent from any insurance issues. It is clear that the Adjudicator was right to find that there had been a breach of section 185(2).
The fresh evidence offered by the lessors includes a report from contractors who attended the premises as an emergency measure after the storm.[74] The work done was to make sure the electrical installation was safe, to do some temporary repairs to the roof, and to check the ceilings. This document would simply confirm the information already before the Adjudicator and so cannot be considered to be of such relevance to be fresh evidence.
[74]Document attached to email of 19 July 2021. This is also in the submissions of 18 May 2021.
Electrical installation
A further finding by the Adjudicator was in respect of the electrical installation.
The evidence about this came from a report commissioned by the tenants because (on their case) there was no response to the water ingress. The report advised that although there was no immediate danger, the wiring installation was not compliant and the electrics in the alfresco area should not be used.[75] There were signs of moisture ingress to the installation, and there would be water damage in a storm. The report included a quote either to remove electrics altogether or to rectify ‘concerns’ and reinstall fans and lights to manufacturers recommendations.[76]
[75]Paragraph 11 of the tenants’ statement, supported by photographs of the fittings concerned.
[76]Clynch Electrical 16 November 2020.
The lessors’ response to this was that a report was awaited from the insurance company’s electrical repairer, who had said orally that there was no fault, so the lessors asked for photographs with date and time stamps. This was also discussed at the hearing and the property manager pointed out that the electrical report obtained by the tenants said there was no immediate danger.[77]
[77]Transcript 1-18.
The Adjudicator found on this evidence, that although the report said there was no immediate danger, there was a potential danger and on that basis the electrical system was not completely safe.[78] Again there was evidence before the Adjudicator to make that finding.
[78]Transcript 1-25 line 41 to 1-26 line 3.
Other fresh evidence
Some fresh evidence does not seem to go to any of the breaches found by the Adjudicator or to remedy. As such, the fresh evidence is irrelevant and should not be admitted for that reason. That includes evidence about repairs to the electrical installation prior to the tenancy,[79] evidence about what happened when other prospective tenants viewed the property,[80] and different and better photographs of the house.[81]
[79]Application for a stay, page 9.
[80]Document attached to email dated 1 September 2021 at 11.20pm.
[81]Attached to the email of 19 July 2021.
Other points made in the appeal
One point made in the appeal, which was also made in the hearing itself, was that no losses suffered by the tenants arising from their early departure from the premises should have been awarded, because it was their decision to leave the premises.[82]
[82]Application for a stay, pages 1b and 26; submissions in the appeal dated 20 July 2021, paragraph 12.
This argument ignores the fact as must have been found by the Adjudicator, that the tenants’ early departure was caused by the breaches. This was the evidence given by the tenants and accords fully with their paperwork, in particular the notice to remedy and the notice of intention to leave.
It is also queried in the appeal why the compensation was made by reference to the rent,[83] but the answer to this is that this is often done to compensate the tenants for loss of enjoyment of the premises or for breaches of the lessors’ obligations.
[83]Application for a stay, page 1c.
It also seems to be suggested in the appeal that the tenants were at fault for not allowing access to the premises by the lessors and their contractors.[84] It is suggested that had they done so, the repairs would have been done and the tenants would then have stayed in the premises for the full contractual term. This argument ignores the fact that the breaches were serious ones, and so the tenants could decide whether or not to end the tenancy using the procedures available to them under the RTRAA – and they decided to do that.
[84]Application for a stay, page 1e; submissions in the appeal received 20 July 2021, paragraphs 11 and 14, timeline attached to email of 19 July 2021.
Conclusion
In these types of appeals, leave of the Appeal Tribunal is needed to bring the appeal. But this will only be given if there the appeal is reasonably arguable and if successful would make a difference to the outcome. Here I have concluded that the grounds of appeal are not reasonably arguable so I do not grant leave to appeal. This means that the appeal fails.
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