MacDonald v Melville

[2017] QCATA 142

CITATION: MacDonald v Melville [2017] QCATA 142

PARTIES:	MALCOLM MACDONALD MARITA MACDONALD (Applicant/Appellant)
v
DAMIEN MELVILLE MELANIE MELVILLE (Respondent)
APPLICATION NUMBER:		APL118-17

MATTER TYPE: Application and Appeals

HEARING DATE: 13 September 2017

HEARD AT: Brisbane

DECISION OF: Justice Carmody

DELIVERED ON: 5 December 2017

DELIVERED AT: Brisbane

ORDERS MADE:

THE APPEAL TRIBUNAL ORDERS THAT:

1.     The application for leave to appeal and appeal is refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL  – where the original application named the property agent as respondent – where the orders were directed at the property agent – whether the landlord has standing to appeal

LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – OTHER MATTERS – where the landlord withheld the benefit of solar credits from the tenant – whether the tenant was induced to rent by misleading information about the nature of the arrangement – whether the solar credits can be withheld

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 39, 42, 126, 127, 145(1), 142(3), 150(1)

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 165(3)(b)

American Express International Inc v Hewitt [1993] 2 Qd R 352

Barron v Fitzgerald (1840) 6 Bing NC 201; 133 ER 79
Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority
[2012] QCATA 241
Duncan v Hill (1873) LR 8 Ex 242; M’Millan v Read (1877) 3 VLR (L) 284

Eisentrager v Lyneham [1952] St R Qd 232

Gregor v Victoria [2000] VCAT 414

Hichens, Harrison, Woolston & Co v Jackson & Sons [1943] AC 266

Skelton v Wood (1894) 71 LT 616 (QB)

Trojan Resorts Pty Ltd v Emprove Holdings Pty Ltd and Body Corporate for The Reserve CTS 31561 [2017] QCA 153

Young v Cole (1837) 3 Bing NC 724; 132 ER 589

APPEARANCES and REPRESENTATION (if any):

APPLICANT/APPELLANT      Self represented

RESPONDENT  Self represented

REASONS FOR DECISION

1. The respondents brought a residential tenancy claim directly against the applicants’ property agent for “intentionally misleading” them about whether the rebate payable for surplus energy generated by solar panels installed at the premises would be passed on, or alternatively, not informing them that the rebate was to be withheld by the applicants.[1]

   [1]Attachment to MCD application filed 9 February 2017.

2. They contend, in effect, that the solar credits should have been assigned or apportioned as a matter of interpretation or under reasonable expectation principles unless specifically agreed otherwise.

3. The property agent defended on the basis that the applicants, not the respondents, were the parties entitled to the solar rebate under the general tenancy agreement (GTA).

4. On ordinary principles a property agent is merely the owner’s representative for a transaction and is not personally liable for any losses incurred by a tenant for any breaches of the tenancy contract. However, any right to claim indemnity against losses, liabilities and expenses incurred in the proper performance of a principal’s instructions[2] is lost if the act is unauthorised[3] or the loss or liability is caused by the agent’s default.[4]

   [2]cf Eisentrager v Lyneham [1952] St R Qd 232; Young…