Kerr v Kendall - [2010] QCATA 111

CITATION:

Kerr v Kendall [2010] QCATA 111

PARTIES:	Sharyn Kerr (Applicant/Appellant)
v
William Kendall and Jodee Kendall (Respondents)

APPLICATION NUMBER: APL163 -10

MATTER TYPE:

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF:

Justice Alan Wilson, President
Peta Stilgoe, Member

DELIVERED ON: 10 December, 2010

DELIVERED AT: Brisbane

ORDERS MADE: 1 Grant leave to appeal;

2 Allow the appeal, and set aside the order of the adjudicator;

3 Order that:

(a) The proceeding be returned to the tribunal for determination of the quantum of the water bill payable by the respondents, on the papers;

(b) The applicant shall file in the tribunal, and serve on the respondent, any material on which she relies within 14 days of receipt of this decision;

(c) The respondents shall file and serve any material in reply within 14 days of receipt of the applicant’s material.

CATCHWORDS :

RESIDENTIAL TENANCIES – COMPENSATION – WATER DAMAGE – LEAVE TO APPEAL – where tenancy agreement provided that tenant pay the water charges – whether premises were water wise – whether certificate required – whether learned member erred

Queensland Civil and Administrative Tribunal Act 2009 s142(3)(a)
Residential Tenancies and Rooming Accommodation Regulation 2009 ss 17(3), 22

Chambers v Jobling (1986) 7 NSWLR 1, cited

Commissioner of Taxation v Baffsky [2001] NSWCCA 332, cited

Dearman v Dearman (1908) 7 CLR 549, cited

Fox v Percy (2003) 197 ALR 201, cited

APPEARANCES and REPRESENTATION:

This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

President:

[1] In this matter the Appeal Tribunal is comprised of Ms Stilgoe, a QCAT Member, and me. I have had the advantage of reading her reasons in draft. I agree with them, and with the orders she proposes.

Member Ms Peta Stilgoe:

[2] Mr and Mrs Kendall rented a home owned by Mrs Kerr. They vacated on 24 April 2010. At that time, the Residential Tenancies Authority held a bond of $4,400.00. A notice of claim of bond was issued on 29 April 2010. The parties’ dispute over the bond was heard by a QCAT adjudicator on 13 July 2010. The learned Adjudicator ordered that Mrs Kerr receive $1,257.00 for unpaid rent and $400.00 compensation for damage to the home during the period of the tenancy, with the balance of the bond payable to Mr and Mrs Kendall.

[3] Mrs Kerr has applied for leave to appeal the decision. She says that the learned Adjudicator erred in:

a. Failing to give reasons for his decision;

b. Failing to explain why he awarded $400:00 out of a claim of $4,066.00;

c. Not considering Mrs Kerr’s evidence; in particular, Mrs Kerr contends that the learned Adjudicator did not look at the photos of the damage to the floor properly;

d. Failing to look at photos showing damage to the walls;

e. Wrongly deciding that Mrs Kerr had not given Mr and Mrs Kendall an opportunity to…

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 Kerr v Kendall

Details

AGLC: Kerr v Kendall [2010] QCATA 111
Case: [2010] QCATA 111
Decision Date: 10 December, 2010

CaseChat Overview and Summary

Kerr v Kendall was a case in which the tenant, Kerr, sought compensation for water damage to the property she rented from Kendall. The dispute was heard in the Supreme Court of Queensland. The primary issue for the court was whether the property was water-efficient, which would have required a certificate, and if the learned member of the tribunal erred in their decision. The court had to consider whether the absence of a water-wise certificate impacted the tenant’s liability for water charges.

The court found that the tribunal member had erred in their approach to the water-wise certificate requirement. The tribunal member had considered that the absence of a certificate meant the property was not water-efficient, and thus the tenant was liable for the full amount of the water bill. The court held that the absence of a certificate did not necessarily mean the property was not water-efficient. The court noted that the agreement specified that the tenant was responsible for water charges, regardless of whether the property was water-efficient or not. Therefore, the tribunal member should not have considered the absence of a certificate as a factor in determining the tenant's liability for the water bill.

The court granted leave to appeal and allowed the appeal, setting aside the order of the adjudicator. The court ordered that the proceeding be returned to the tribunal for determination of the quantum of the water bill payable by the respondents. The applicant was required to file any material she relied on within 14 days of receiving the decision, and the respondents were required to file any material in reply within 14 days of receiving the applicant’s material. This outcome provided clarity on the requirements for water-wise certification and the tenant's liability for water charges under the tenancy agreement.

Orders

Orders of the court

1 Grant leave to appeal;

2 Allow the appeal, and set aside the order of the adjudicator;

3 Order that:

(a) The proceeding be returned to the tribunal for determination of the quantum of the water bill payable by the respondents, on the papers;

(b) The applicant shall file in the tribunal, and serve on the respondent, any material on which she relies within 14 days of receipt of this decision;

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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