L J Hooker Stafford v Roberts

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

L J Hooker Stafford v Roberts [2020] QCATA 94
PARTIES: L J HOOKER STAFFOTD 

(Applicant)

v
KATIE ROBERTS 

(Respondent)

APPLICATION NO:

APL348-19

ORIGINATING APPLICATION NO:

MCDT 450 of 2019 Brisbane

MATTER TYPE:

Appeals

DELIVERED ON:

26 June 2020

HEARING DATE:

1 June 2020

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes,  Member
ORDERS:

1           Leave to appeal is granted.

2           The orders made on 1 November 2019 are set  aside.

3           In lieu thereof it is ordered that the Residential Tenancies Authority pay $430.70 of the Respondent Roberts’ bond to the Appellant LJ Hooker Stafford and the balance of same, namely $1,109.30 to the Respondent Roberts.

4           No order as to costs.
CATCHWORDS:

APPEAL – APPLICATION FOR LEAVE TO APPEAL – COUNTER APPLICATION – where residential tendency - where tenant seeks compensation or reduction of rent – where lessor seeks compensation for damage to property - where tenant’s application brought after expiry of lease – where tenant’s application not brought within time limit prescribed by section 491 of Residential Tenancies and Rooming Accommodation Act 2008 (Qld) – whether tenant’s application competent either as claim for compensation for breach of contract or for loss of amenity under section 94 of Act – where tenant’s claim characterised as rent reduction – where section 491 defence not raised at trial – where ineligibility for section 94 claim not raised at trial – where appeal tribunal raises absence of jurisdiction ex mero motu – where award for loss of amenity set aside

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 142
Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 94, s 106, s 491

Baxter v NSW Clickers’ Association (1909) 10 CLR 114

Bourke v Kendall Rentals [2019] QCATA 233

  Christ Church Grammar School v Bosnich & Anor [2010] VSC 476

Cleak v Hirt [2013] QCATA 321

Davison v Vickery’s Motors Ltd (in liq) (1925) 37 CLR 1

DMW v CGW (1982) 151 CLR 491; [1982] HCA 73

Gould v Mazheiko & Gill [2020] QCATA 10

Grey v Manitoba and North Western Railway Co of Canada [1897] AC 254

McGarry v Coates [2013] QCATA 32

Marine Coatings of Alabama Inc v United States  of America (1986) 792 F 2d 1565

Masinello v Parker & Anor [2013] QCATA 3

Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611

Mond v Lipshut [1999] VSC 103.

Nunn v Baker (1987) 518 So 2d 711

Parisienne Basket Shoes Pty Ltd  v Whyte (1938) 59 CLR 369
R v Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Ltd  (1978) 142 CLR 113

R v Watson; Ex parte Armstrong (1976) 136 CLR 248

Rail Corporation of NSW v Nebax Constructions [2012] NSWSC 6

Realgo Investments Pty Ltd v Daley [2013] QCATA 81

Stanford v Stanford (2012) 247 CLR 108

Suttor v Gundowa Pty Ltd (1950) 81 CLR 418

Thin Thin Cho v Minister for Immigration & Multicultural Affairs (1998) 55 ALD…

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Details
Case
[2020] QCATA 94
Decision Date

CaseChat Overview and Summary

The case of L J Hooker Stafford v Roberts involved a dispute between a landlord and a tenant over the return of a bond and damages for loss of amenity. The tenant, Roberts, claimed that the landlord, Hooker, had breached the lease by failing to maintain the property, which resulted in a substantial loss of amenity. The landlord, on the other hand, sought compensation for damage to the property caused by the tenant. The dispute was heard by the Queensland Civil and Administrative Tribunal (QCAT) and an appeal against the tribunal's decision was brought before the court. The legal issues in the case centred around whether the tribunal had jurisdiction to hear the tenant's claim for loss of amenity and whether the claim was substantiated. The court found that the tribunal had jurisdiction to hear the claim, but the claim was not substantiated as the issues raised were not within the scope of the tribunal's authority. The court also found that the tribunal had erred in its interpretation and application of section 94(4) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). The court allowed the appeal and set aside the tribunal's orders, directing that the landlord be paid $430.70 from the tenant's bond and the balance of the bond to be paid to the tenant.

The court held that the tribunal had jurisdiction to hear the tenant's claim for loss of amenity as the claim was brought within the time limit prescribed by section 491 of the Act. However, the court found that the claim was not substantiated as the issues raised were not within the scope of the tribunal's authority. The court held that the tribunal had erred in its interpretation and application of section 94(4) of the Act, which provides for the recovery of damages for loss of amenity. The court held that the tribunal had failed to apply section 419 of the Act, which sets out the circumstances in which damages for loss of amenity may be awarded. The court held that the issues raised by the tenant, such as the malfunctioning of a garage door and blinds, did not amount to a substantial loss of amenity within the meaning of the Act. The court held that the tribunal's view was not unreasonable merely because another reasonable view was possible. The court held that the tribunal had jurisdiction to hear the landlord's counterclaim for compensation for damage to the property caused by the tenant. The court held that the landlord was entitled to be paid $825.70 from the tenant's bond for repairs to the walls and courtyard door, and the cost of tidying the courtyard. The court held that the balance of the bond, namely $1,109.30, should be paid to the tenant. The court did not make any order as to costs.

Orders

Orders of the court

1 Leave to appeal is granted.

2 The orders made on 1 November 2019 are set aside.

3 In lieu thereof it is ordered that the Residential Tenancies Authority pay $430.70 of the Respondent Roberts’ bond to the Appellant LJ Hooker Stafford and the balance of same, namely $1,109.30 to the Respondent Roberts.

4 No order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

By way of counterclaim[4] Hooker asks the tribunal (a) to dismiss the compensation claim; and (b) to order the Residential Tenancies Authority (RTA) to pay out of the bond $825.70 to Hooker and $714.30 to Roberts. Hooker’s claim ($825.70) is for repairs to walls and courtyard door, and the cost of tidying the courtyard.[4]Filed 24 October 2019.Primary decision The matter was tried by a panel of two Justices of the Peace on 1 November 2019. The Tribunal’s orders are (a) that Hooker pay $1,602.10 to Roberts as damages for loss of amenity[5] and (b) that the RTA repay the bond in full to Roberts.[5]Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (`the Act’) s 94(2)(b). The sum of $1,602.10 payable to Roberts was arrived at by deducting $437.70 allowed for Hooker’s repairs from $2,032.80 awarded to Roberts for loss of amenity.[6][6]Transcript of hearing 1 November 2019 (`T’) page 41 lines 11-15. Hooker now seeks leave[7] to appeal that decision.[7]As required by QCAT Act s 142(3)(a)(i).Proposed grounds of appeal Hooker submits that – (a)The tribunal’s interpretation and application of section 94(4) of the Act is in error;(b)The tribunal failed to apply section 419 when on the evidence it should have done so.First proposed[8] ground[8]Prosecution of each ground is contingent upon a grant of leave. Hooker contends that `an issue with the remote control and 2 window blinds’ do not amount to a substantial loss of amenity within the meaning of the Act. The expression `amenity’ is not defined in the Act, so its meaning is a question of common parlance. A modern dictionary offers this definition:The equipment or services of a house, area etc which make life comfortable and pleasant.[9][9]Macquarie Dictionary (1998 edition). The garage is as much part of the demised premises as the kitchen or the back yard. Where there is provision for an electrically operated garage door, the lack of an efficient remote control is a significant inconvenience. Manual operation of the door entails leaving and re-entering the car[10]; it may be physically testing, especially for an elderly or female tenant. Malfunctioning blinds may affect light, air or privacy.[11] Also mentioned were a weed infestation and a recalcitrant towel rail.[12][10]T page 30 lines 34-41.[11]T page 33 line 45: `front bedroom where my daughter was in’.[12]T page 36 line 39. Interference with `services ... which make life comfortable and pleasant’ need not be total or even predominant to be substantial, or considerable, real or actual.[13] Ultimately a decision in relation to section 94 is a matter of judgment and decree for the primary tribunal. A view is not unreasonable merely because another reasonable view is possible.[14][13]Macquarie Dictionary (1998 edition).[14]Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at [131]; In Re W (an infant) [1971] AC 682, 700. Points not raised below And there is more to be said. Generally the courts discountenance attempts to raise points on appeal that were not canvassed at the trial. An application for leave to appeal is not an opportunity to re-run the trial. That error is, as it were, a forensic relocation of the goal posts:More than once it has been held by this [High] Court that a point cannot be raised for the first time on appeal when it could possibly have been met by calling evidence below... the rule is strictly applied.[15]The conduct of the trial is governed by the questions [then] asked ... a part is, and ought to be bound by the course of the trial.[16][15]Water Board v Moustakas (1988) 180 CLR 491 at [13].[16]Grey v Manitoba and North Western Railway Co of Canada [1897] AC 254 at 267; Davison v Vickery’s Motors Ltd (in liq) (1925) 37 CLR 1 at 35 per Starke J; Suttor v Gundowa Pty Ltd (1950) 81 CLR 418 at 438; Mond v Lipshut [1999] VSC 103.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.