Keating v Bidenko - [2019] QCATA 24

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Keating v Bidenko [2019] QCATA 24

PARTIES:

PENNY KEATING
(applicant/appellant)

v

LOUISE BIDENKO

(respondent)

APPLICATION NO/S:

APL197-18

ORIGINATING APPLICATION NO/S:

MCD T92/18

MATTER TYPE:

Appeals

DELIVERED ON:

4 February 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Carmody

ORDERS:

1.   Leave to appeal granted 8 November 2018.

2.   Appeal allowed.

3.   Rent decrease order set aside.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCIES – LEASES AND TENANCY AGREEMENTS – COMPENSATION – application for leave to appeal against rent decrease order under 94 Residential Tenancy and Room Accommodation Act 2009 (RTRA Act) made 18 months after the tenancy ended – where owner of rented premises allegedly failed to perform a promise to erect a security fence during the first or subsequent term of an extended tenancy – where a late compensation claim for the same lessors breach was statute barred – whether tribunal had discretion to retrospectively refund rent already paid in the circumstances – where, in any case, the order was made unfairly due to tribunal’s failure to explain and allow time to adequately respond to late amendment raising new issues of law and fact as well as discretionary considerations – where no consideration or conclusion stated about whether the decreased amenity or standard of the premises was substantial.

Limitations of Actions Act 1974 (Qld) s 10
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 32, 61(1)(a)
Residential Tenancies and Rooming Accommodation Act 2009 (Qld) ss 94, 417, 419, 420

Campbell v Donker [2013] QCATA 6
Hurst v Pyatt [2017] QCATA 101
Place West Rental v Brooks & Anor [2012] QCAT 511
Underwood v Queensland Department of Communities (State of Queensland) [2012] QCA 158
Vloedmans v Malseed [2014] QCATA 174

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

Leave was granted on 8 November 2018 to appeal against a retrospective lump sum rent decrease order the tribunal made under the discretion conferred by s 94 Residential Tenancies and Rooming Accommodation Act 2009 (RTRA Act).
The context
The respondent (tenant) applied for orders to recover $3000 in extra rent paid over 150 weeks as “reparation” for the loss of benefit of a dog fence the appellant (owner) allegedly promised to provide but was not received.
On her case she paid $320.00 (or $20.00 more than the advertised weekly rent) over four (4) different tenancy periods from 2 April 2015 to 24 February 2018 in consideration for the fence.
The respondent was finally told by the property manager that the owner was not going ahead with the “fence installation at this point in time” on 24 April 2017.
According to a note on the property agent’s file dated 22 January 2018:
Tenant came into the office this morning and advised that she will not be signing a lease until she knows if a fence will be…

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 Keating v Bidenko

Details

AGLC: Keating v Bidenko [2019] QCATA 24
Case: [2019] QCATA 24
Decision Date: 4 February 2019

CaseChat Overview and Summary

In the matter of Keating v Bidenko, the respondent applied for leave to appeal against a decision of the Residential Tenancies Authority (RTA) tribunal, which had ordered a decrease in the rent paid by the applicant, Mr. Keating, to the respondent, Mr. Bidenko. The application was made 18 months after the end of the tenancy and concerned an alleged promise by the respondent to erect a security fence that was not fulfilled during the tenancy. The applicant sought a retrospective refund of the rent already paid due to the alleged breach.

The primary legal issue before the court was whether the tribunal had the discretion to order a refund of rent already paid under the circumstances. A secondary issue was whether the tribunal had failed to adequately explain its decision and allow time for a proper response to the late amendment by the respondent, which raised new issues of law, fact, and discretionary considerations. Additionally, the court had to consider whether the tribunal had given consideration to whether the decreased amenity or standard of the premises was substantial.

The court found that the tribunal did have the discretion to order a refund of the rent already paid in this case. However, the court also determined that the tribunal had failed to properly explain and allow time for a response to the late amendment by the respondent, which raised new issues of law, fact, and discretionary considerations. Furthermore, the court found that the tribunal had not given consideration to whether the decreased amenity or standard of the premises was substantial. Consequently, the court allowed the appeal, set aside the rent decrease order, and granted leave to appeal.

Orders

Orders of the court

1. Leave to appeal granted 8 November 2018.

2. Appeal allowed.

3. Rent decrease order set aside.

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:	Keating v Bidenko [2019] QCATA 24
PARTIES:	PENNY KEATING (applicant/appellant)
v
LOUISE BIDENKO (respondent)
APPLICATION NO/S:	APL197-18
ORIGINATING APPLICATION NO/S:	MCD T92/18
MATTER TYPE:	Appeals
DELIVERED ON:	4 February 2019
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Justice Carmody
ORDERS:	1. Leave to appeal granted 8 November 2018. 2. Appeal allowed. 3. Rent decrease order set aside.
CATCHWORDS:	APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCIES – LEASES AND TENANCY AGREEMENTS – COMPENSATION – application for leave to appeal against rent decrease order under 94 Residential Tenancy and Room Accommodation Act 2009 (RTRA Act) made 18 months after the tenancy ended – where owner of rented premises allegedly failed to perform a promise to erect a security fence during the first or subsequent term of an extended tenancy – where a late compensation claim for the same lessors breach was statute barred – whether tribunal had discretion to retrospectively refund rent already paid in the circumstances – where, in any case, the order was made unfairly due to tribunal’s failure to explain and allow time to adequately respond to late amendment raising new issues of law and fact as well as discretionary considerations – where no consideration or conclusion stated about whether the decreased amenity or standard of the premises was substantial. Limitations of Actions Act 1974 (Qld) s 10 Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 32, 61(1)(a) Residential Tenancies and Rooming Accommodation Act 2009 (Qld) ss 94, 417, 419, 420 Campbell v Donker [2013] QCATA 6 Hurst v Pyatt [2017] QCATA 101 Place West Rental v Brooks & Anor [2012] QCAT 511 Underwood v Queensland Department of Communities (State of Queensland) [2012] QCA 158 Vloedmans v Malseed [2014] QCATA 174
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).