Lewington v Lunt

[2013] QCATA 341

CITATION: Lewington v Lunt [2014] QCATA 341

PARTIES:	Mr Johnathon Lewington (Applicant)
V
Mr Kerry Lunt (Respondent)

APPLICATION NUMBER: APL420 -13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Stilgoe OAM

DELIVERED ON: 19 December 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1. Leave to appeal refused

CATCHWORDS:

APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE –where air conditioning not working for short period – where tenant refused to pay rent - where lessor issued notice to remedy breach and notice to leave – where tenant terminated tenancy early – whether lessor mitigated his loss

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 326(3) and 421(1)(b)

Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118

Chambers v Jobling (1986) 7 NSWLR 1

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
Cachia v Grech [2009] NSWCA 232
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
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404

APPEARANCES and REPRESENTATION (if any):

The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. In January 2013 Mr Lewington rented an apartment from Mr Lunt. He paid $930 per week rent for a “stylish, spacious and ultra-convenient…exclusive apartment” at Milton. He signed a 12-month agreement. In March 2013, the air-conditioner developed problems. It was not working for 24 days. A contractor carried out major repair work over 8 days, which made the master bedroom unliveable for that short time.

2. Mr Lewington stopped paying the rent in April 2013. Mr Lunt issued a notice to remedy breach and a notice to leave. Mr Lewington left the tenancy on 4 May 2013. Mr Lunt readvertised the apartment but, as at the date of hearing, he had not found new tenants. He applied for an order that Mr Lewington pay for the rent he lost by the early termination. The tribunal ordered Mr Lewington pay Mr Lunt $17,670 plus the filing fee.

3. Mr Lewington wants to appeal that decision. He says that the learned Adjudicator erred by failing to consider whether Mr Lunt had mitigated his loss or failed to take steps that could have avoided the loss. He says that the learned Adjudicator failed to consider the requirements of ss 326(3) and 421(1)(b) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). He says that the learned Adjudicator made findings of fact where there was no evidence to support the findings. He says the learned Adjudicator gave Mr Lunt compensation for a loss that had not yet occurred. He says the learned Adjudicator’s calculations are unclear or fatally flawed. He says that the learned Adjudicator erred in his calculation of the reduction in rent because the air conditioning…