Lilwall v Austin
[2011] QCATA 32
•28 February 2011
| CITATION: | Lilwall v Austin [2011] QCATA 32 |
| PARTIES: | Vicki Lilwall trading as Harcourts Clayfield (Applicant/appellant) |
| v | |
| Robert Austin (Respondent) |
| APPLICATION NUMBER: | APL190-10 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 28 February 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Application for leave to appeal refused. |
| CATCHWORDS : | RESIDENTIAL TENANCIES – LEAVE TO APPEAL – where the Tribunal ordered that rent be reduced due to a decrease in the amenity or standard of the premises – where the appellant alleges that there was no fault in the air-conditioner – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009, ss 32, 142(3)(a)(i) |
APPEARANCES and REPRESENTATION (if any):
By order of the Appeal Tribunal the application for leave to appeal (and the appeal, if leave is granted) were directed to be determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Dr Austin and Ms Viviana Ramirez are tenants in residential premises at Clayfield managed by Harcourts Clayfield. They brought proceedings in QCAT’s Minor Civil Disputes jurisdiction in July 2010 seeking orders that emergency repairs on the premises be carried out – in particular, on the air-conditioning system and in respect of rat control.
Ms Lilwall, who says variously in documents filed in QCAT that she is employed by Harcourts but, elsewhere, that she trades as ‘Harcourts Clayfield’ bought a counter-application that the tenants’ proceedings be dismissed.
The matter was heard by a QCAT Adjudicator on 10 August 2010 who took evidence and submissions from Dr Austin’s son, Mrs Ramirez, and Ms Lilwall and found that the amenity or standard of the premises had decreased[1] and the rent should be reduced by $100.00 per week for a period of 10 weeks and the proceedings, otherwise, be adjourned for 1 month.
[1]Residential Tenancies and Rooming Accommodation Act 2008, s 94(2)(b).
Ms Lilwall seeks leave to appeal that decision[2] on the grounds that there was, in truth, no fault in the air-conditioner.
[2]Leave is necessary: Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(i).
The transcript of the proceedings before the learned Adjudicator shows:
(a) That notwithstanding a report presented to him from an air-conditioning service company, he accepted evidence from Dr Austin and Ms Ramirez that the system was not working correctly; and,
(b) That he also concluded that not enough had been done to deal with a rat infestation.
It also shows that there was evidence before the Adjudicator supporting, and justifying, both these findings. The air-conditioning company’s report was considered in some detail and Dr Austin’s son gave evidence that although he had been told any problems in the air-conditioner were caused by the tenants’ own misuse of the equipment, he did not accept that. He said: ‘it still does not work because, when we go to use it, it will work for about an hour and then cut out for about 4 hours...’.
The learned Adjudicator gave reasons for his decision. In regard to the evidence concerning the air-conditioner he said ‘… you’re hearing squarely from these tenants that there is something wrong and I don’t think that we can continue to ignore it or just rely on the fact that someone says, ‘Look, they’re not using it properly’’.
It cannot be said that the Adjudicator’s findings about either defects in the air-conditioning unit, or the rat infestation, were not reasonably open. He had oral evidence from the tenants upon which those findings could reasonably be based.
Subsequently Ms Lilwall has produced another technician’s report suggesting, again, that there is nothing wrong with the air-conditioner. That evidence was not before the learned Adjudicator – at least, in that form – and would not ordinarily be admissible in support of the present application for leave to appeal. It adds nothing to the evidence before the adjudicator.
There is no apparent error of law, or fact, in the learned Adjudicator’s reasons. The findings of fact he made were open on the evidence. His decision to, in effect, provide the tenant with some rent relief while some aspects of the rented premises were defective involve a fair and reasonable weighing of the competing interests here – it gave the tenants a measure of justice while, at the same time, giving the agent and the landlord both time and incentive to remove the defects. It is not clear what has since happened but in any event, there is no ground for granting leave to appeal here.
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