KTK Property Management v Ho - [2015] QCATA 6

CITATION:

KTK Property Management v Ho [2015] QCATA 6

PARTIES:	KTK Property Management (Applicant/Appellant)
v
Victor Ho Blythe Ho (Respondents)

APPLICATION NUMBER:

APL450 -14

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

16 January 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal granted.

2. Appeal allowed.

3. The decision of 5 August 2014 is set aside.

4. The application for compensation filed 22 May 2014 is dismissed.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – RESIDENTIAL TENANCIES – where termite damage to window sill in tenancy – where maintenance request 14 months after termite damage discovered – where tenant claim for compensation – where tribunal ordered compensation - whether date for claiming breach was within 6 month time limit – whether substantial diminution in amenity of property – whether dispute resolution notice gave tribunal jurisdiction to hear dispute - whether grounds for leave to appeal

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 94, 402, 416, 419

Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Pickering v McArthur [2005] QCA 294
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
Chambers v Jobling (1986) 7 NSWLR 1
Caruana v Harcourts Proactive Results Pty Ltd [2012] QCATA 55
Masinello v Parker & Anor (No.2) [2013] QCATA 325

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

KTK Property Management managed a property rented by Mr and Ms Ho. The property had termite damage in 2013. The termites were eradicated but the damage, to the window sill in the main bedroom, was not repaired.
In April 2014, KTK issued a notice to remedy breach to remove an illegal structure that Mr and Ms Ho had built in the courtyard. In May 2014, Mr and Ms Ho filed a dispute resolution request with the Residential Tenancies Authority. In late May 2014, they filed a claim for compensation for the loss of enjoyment caused by the terminate damage. Two Justices of the Peace ordered KTK pay Mr and Ms Ho $3,000 compensation.
KTK wants to appeal that decision. It says the learned Justices erred in finding that Mr and Ms Ho filed their claim within six months of the breach of tenancy agreement as required by s 419(3) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act). It says Mr and Ms Ho did not follow the dispute resolution process as required by s 416 of the RTRA Act and, therefore, the tribunal had no jurisdiction to hear the dispute. It says that Mr and Ms Ho made false and misleading statements to the tribunal, which caused it disadvantage pursuant to s 48(1)(e) of the QCAT Act. It says the learned Justices erred in fact. It says the learned Justices erred…

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.

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Details

Case: [2015] QCATA 6
Decision Date: 16 January 2015

CaseChat Overview and Summary

The case of KTK Property Management v Ho concerns a dispute arising from a residential tenancy, specifically regarding termite damage to a window sill. The tenant, Ho, filed a claim for compensation with the Residential Tenancies Authority (RTA) after discovering termite damage to a window sill within the property. The maintenance request was made 14 months after the damage was first noticed. The tribunal subsequently ordered the landlord, KTK Property Management, to compensate the tenant. The landlord challenged this decision, arguing that the claim was outside the six-month time limit for such claims and that there was no substantial diminution in the amenity of the property.

The court was tasked with determining whether the tenant's claim for compensation was within the six-month time limit, whether the damage resulted in a substantial diminution in the amenity of the property, and whether the dispute resolution notice provided the tribunal with the jurisdiction to hear the dispute. The court also had to consider whether there were grounds for granting leave to appeal and whether such an appeal should be allowed.

In its reasoning, the court found that the tenant's claim was indeed outside the six-month time limit and that there was no substantial diminution in the amenity of the property. Additionally, the court held that the dispute resolution notice did not provide the tribunal with jurisdiction to hear the dispute. Consequently, the court granted leave to appeal, allowed the appeal, and set aside the decision of 5 August 2014. The court also dismissed the application for compensation filed on 22 May 2014.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal allowed.

3. The decision of 5 August 2014 is set aside.

4. The application for compensation filed 22 May 2014 is dismissed.

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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