Lee v Wide Bay Real Estate
[2010] QCATA 4
•9 April 2010
| CITATION: | Lee v Wide Bay Real Estate [2010] QCATA 4 |
| PARTIES: | Robert LEE (Applicant) |
| v | |
| Wide Bay Real Estate (Respondent) |
APPLICATION NUMBER: APL005-10
| MATTER TYPE: | Appeals |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | President |
DELIVERED ON: 9 April 2010
DELIVERED AT: Brisbane
ORDERS MADE:
Application for leave to appeal dismissed
| CATCHWORDS : | RESIDENTIAL TENANCIES - COMPENSATION FOR ALLEGED DEFECTS IN PREMISES - Residential Tenancies and Rooming Accommodation Act 2008, ss 185(3)(a), (b) and (c) – MEANING AND EFFECT – where tenant alleges that lessor failed to maintain premises fit for tenant to live in, maintain the premises and inclusions in good repair and ensure laws dealing with health and safety of persons using or entering premises were complied with PROCEDURAL FAIRNESS – ALLEGATION OF INSUFFICIENT TIME TO READ NEW SUBMISSIONS – whether surprising and unfair RESIDENTIAL TENANCIES - GROUNDS FOR TERMINATION ORDER – whether lessor intentionally or recklessly caused injury to tenant Residential Tenancies and Rooming Accommodation Act 2008, ss 185(3)(a), 185(3)(c), 311, 344 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: |
| RESPONDENT: |
REASONS FOR DECISION
Between 2006 and late 2009 Mr Lee was a tenant in a dwelling house at 9 Park St Elliott Heads which was managed, for the lessor, by Wide Bay Real Estate. After he quit his tenancy, he commenced proceedings in the Small Claims Tribunal for damages resulting from alleged defects in the premises that arose during the time he occupied them. His claim was dismissed by a Magistrate sitting as a QCAT Adjudicator on 18 December 2009.
The damages claim had two elements: the first, for loss of amenity for not being able to use the bedroom, sleep out, or kitchen properly throughout a period of 181 weeks during the tenancy, at a rate of $35.00 per week; the second, for $1000 for health and safety issues relating to the failure of the hot water service, sewerage runoff from surrounding properties, cockroaches, mould, and mildew. He also claimed court costs of $80.
Mr Lee presented his own case before the learned Magistrate, who determined that there was insufficient evidence to support the claim. The Magistrate also accepted the respondent’s evidence that appropriate steps had been taken by the lessor to address the problems of which Mr Lee had complained. He also found that Mr Lee had failed to establish any ‘nexus’ between his claims for loss of amenity, which appeared to relate to health problems he suffered as a consequence of the lessor’s or the agent’s failure to maintain the property adequately, and any wrong doing, or breach of the tenancy agreement, by the lessor or the agent.
Because this matter arises from a Minor Civil Dispute, leave to appeal is necessary: Queensland Civil and Administrative Tribunal Act 2009, s 142(3).
Mr Lee’s grounds in support of his application for leave to appeal assert that he was presented with new documents at the hearing but was unable to read them at the time and was thereby significantly disadvantaged. He also alleges that the Magistrate was wrong in finding that appropriate repairs had been undertaken to the property, and he should have been awarded compensation. In particular, he asserts that the lessor breached s 185(3)(a),(b) and (c) of the Residential Tenancies and Rooming Accommodation Act 2008 (RTRA).
Nothing in the transcript supports the allegation that Mr Lee was either surprised, or prejudiced, by documents he received during the hearing. Affidavits from the owner and the real estate agent were presented, apparently for the first time, after the hearing had commenced and Mr Lee had made some submissions to the Magistrate, but the hearing then proceeds through over 10 pages of transcript after which the Magistrate asked Mr Lee if he had finished reading the affidavits and when he said he had not, plainly waited for him to do so. He was then invited to respond.
Nothing in the affidavits is surprising. The owner Mr Mark Elliott swears to steps he took to deal with a drainage problem after Mr Lee made complaints to the local Council, and that he engaged a plumber to fix the problem. The agent, Mr Grae Shelton deposes to the history of Mr Lee’s tenancy and that he had made complaints about maintenance issues in 2006, 2008 and May 2009. That history of complaints is supported by copies of notices Mr Lee sent to the agents at those times complaining, among other things, about runoff from adjoining properties causing an unpleasant smell, and mould, in his rented property.
Mr Lee presented a letter from Bundaberg Regional Council of 25 September 2009 showing that at his request an inspection was carried out by Council’s plumbing inspector on 28 February 2008, when it was apparently observed that groundwater was either lying around or passing across the property, and the owner undertook to divert it. The Council letter then refers to another complaint from Mr Lee in May 2009, followed by another inspection by Council, and a note that a plumber engaged by the owner Mr Elliott would be attending to fixing downpipes, and diverting groundwater; and, advice in June 2009 that this work had been carried out.
It follows that the learned Magistrate’s finding that appropriate steps were taken by the lessor in the face of Mr Lee’s complaints about runoff, mould and mildew was open on the evidence before him and, indeed, the weight of evidence favoured that conclusion.
Mr Lee’s further problem was the absence of any evidence establishing any connection between what he said were health problems associated with that runoff, and the associated smell, and mould. Indeed, the only medical evidence he produced, a copy of an annual health assessment undertaken on 8 September 2009, showed he was in good physical health but did suffer some neurological deficits.
These allegations of ill health apparently related to the sum $1000 claimed for ‘health and safety issues’. Mr Lee was asked by the Magistrate on several occasions whether he had any medical evidence to establish any connection between any health problems he might suffer and his allegations relating to the owners, or the agents, alleged failure to undertake appropriate maintenance and repairs. The only evidence he had was that discussed earlier, and it did not support his case.
The claim under s 185 of the RTRA relates to the obligations, in that statute, for lessors to maintain premises in good repair and a condition which means they are safe and healthy to live in. The learned Magistrates’ findings, which were consonant with the weight of evidence before him, extinguish any force from this claim.
Mr Lee’s claims were largely for, in effect, compensation under ss 311 and 344 of the RTRA[1] which provide that compensation may be ordered where the lessor has intentionally or recklessly caused injury to the tenant. Even if the most ungenerous view is taken of the actions of the lessor or his agent, it is very difficult to see how they could ever have been categorised in that way.
[1]The RTRA provisions apply even though the tenancy commenced before that Act came in to effect: RTRA transitional provisions, Ch 14
There is, then, no demonstrated or discernable error in the learned Magistrate’s decision. An appeal would inevitably fail. All the arguments open to Mr Lee have been canvassed; there is no question of importance about which further argument and a decision of the Appeal Tribunal would be of public advantage[2]. Leave to appeal should, then, be refused.
[2]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577.
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