Masinello v Parker & Anor (No 2)
[2013] QCATA 325
•8 November 2013
‘
CITATION: Masinello v Parker & Anor (No.2) [2013] QCATA 325
PARTIES: Stamatina Masinello
(Appellant)v Kenneth Parker and Alexis Parker
(Respondents)
APPLICATION NUMBER: APL399-13
MATTER TYPE: Appeals
HEARING DATE: 6 November 2013
HEARD AT: Brisbane
DECISION OF: Dr Forbes, Member
DELIVERED ON: 8 November 2013
DELIVERED AT: Brisbane
ORDERS MADE:
Leave to appeal is refused.
CATCHWORDS: MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – Residential Tenancies and Rooming Accommodation Act 2008 (RTRAA) – order for rebate of rent – whether application under RTRAA s 94 appropriate – whether application should have been made under RTRAA s 419 – whether special time limit in section 419 applies to a s 94 application – whether findings of fact supported by evidence – whether calculation of rebate within limits of discretion – whether leave to appeal should be granted
Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 20, 32, 61, 142
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), ss 94, 419Queensland Building Services Authority Act 1991 (Qld), s 86
Underwood v Queensland Department of Communities (State of Queensland) [2012] QCA 158; [2012] HCASL 179
Munday v Queensland Building Services Authority [2012] QCAT 15
Cornpig Pty Ltd v Queensland Building Services Authority [2011] QCAT 255
Customizer Kitchens QLD v Queensland Building Services Authority [2011] QCAT 13
Watkins v Queensland Building Services Authority [2013] QCAT 535
McLachlan v Real Tenants – Real Property Management ACN 130683297 [2011] QCAT 665
Caruana v Harcourts Proactive Results Pty Ltd [2012] QCATA 55Moyer v Chang [2013] QCATA 117
Trimble v Babet [2013] QCATA 81
Campbell v Donker [2013] QCATA 6
Wechsel v Andrew (No 3) [2011] QCATA 106
Hollingsworth v Hopkins [1967] Qd R 168
Holtman v Sampson [1985] 2 Qd R 472
Davie v Edinburgh Corporation (No 2) [1953] SC 34
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257
Drew v Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359
Felton and Anor v Raine and Horne Real Estate [2011] QCATA 330
International Professional Services v Tritone Nominees Pty Ltd [2011] QCATA 332
Robinson v Corr [2011] QCATA 302
Fox v Percy (2003) 214 CLR 118
Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611In Re W (an infant) [1971] AC 682
Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014Glenwood 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
Paradis v Settlement Agents Supervisory Board (2007) 33 WAR 361APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
[1]The respondents (the Tenants) leased premises at Queen’s Road, Hamilton, Brisbane, from the applicant (the Landlady) from 12 May 2012 to 11 May 2013. The rent was $2,100 per week. They vacated the property on 10 May 2013.
[2]It is common ground that the tenancy was governed by the Residential Tenancies and Rooming Accommodation Act 2008 (the RTRAA).
[3]During their occupancy the Tenants complained to the Landlady about various defects in the house, particularly defective lighting in several rooms, and a faulty dishwasher.
[4]On 1 July 2013 the Tenants initiated a minor civil tenancy dispute claiming (so far as is now material) a “rent reduction due to faulty equipment”, under section 94 of the RTRAA.
[5]On 3 September 2013 an Adjudicator found that, having regard to the “up-market” character of the accommodation, the high rent, and the defects proved, the Tenants were entitled to a rent rebate in the nett amount of $7,748.
[6]The Landlady counterclaimed $6,205 for damage to a bedroom floor, cleaning of a marble floor, damage to window shutters, and to a kitchen bench. The Adjudicator awarded the Landlady an amount for the marble floor, but rejected the rest of her claims.
[7]The Landlady seeks leave to appeal[1] against those decisions, on these grounds:
a) That the Tenants’ claim should have been for compensation under section 419[2] of the RTRAA, not for a rebate under section 94;
b) That a claim under section 419 would necessarily fail as being out of time;
c) That the Adjudicator’s rejection of the Landlady’s counterclaim for damage to a bedroom floor, and to items other than the marble floor was against the weight of the evidence, or without evidentiary support.
[1] Leave is necessary: QCAT Act s 142(3)(a)(i).
[2] Applications for compensation for breach of residential tenancy agreements.
[8]On the learned Adjudicator’s view of the law, it was not necessary for him to find as a fact that a section 419 claim would have been out of time, but for present purposes I shall take that to be so.
Is section 94 available to the Tenants?
[9]Section 419(3) stipulates that a claim for compensation “must be made within 6 months after the lessor tenant becomes aware of the breach”. That provision is not merely procedural, but substantive. It defines the limits of the Tribunal’s jurisdiction under s 419. The time limit cannot be extended under section 61 of the QCAT Act.[3]
[3]The material wording of s 419 is identical to that of s 86(2) of the Queensland Building Services Authority Act 1991, as to which see Munday v Queensland Building Services Authority [2012] QCAT 15; Cornpig Pty Ltd v QBSA [2011] QCAT 255; Customizer Kitchens QLD v QBSA [2011] QCAT 13; Watkins v Queensland Building Services Authority [2013] QCAT 535. On the present provision, see to the same effect McLachlan v Real Tenants – Real Property Management ACN 130683297 [2011] QCAT 665; Caruana v Harcourts Proactive Results Pty Ltd [2012] QCATA 55; Moyer v Chang [2013] QCATA 117.
[10]The Tenants’ originating process[4], filed some 2 months after they vacated the premises, seeks a rent reduction due to faulty equipment, not compensation for breach of the agreement. That is quite consistent with their earlier request to the Residential Tenancy Authority for a resolution of the dispute.[5]
[4] Application for Minor Civil Dispute – residential tenancy dispute filed 1 July 2013.
[5] Form 16, 26 June 2013.
[11]Section 94 creates a cause of action that is separate and distinct from the remedy provided in section 419:
The RTRA Act provides for two ways in which a tenant can obtain relief if the premises fall into disrepair and the lessor does not take steps to remedy the situation. First, the tenant may apply for a decrease in the rent to be paid pursuant to s 94. Secondly, the tenant may make a claim for compensation for breach of the residential tenancy agreement under s 419. Both are separate and distinct causes of action open to the tenant.[6]
[6]Trimble v Babet [2013] QCATA 81 at [17] per Wilson J, citing with approval Campbell v Donker [2013] QCATA 6 at [18].
[12]When section 94 is relied on, the time limit in section 419 is beside the point. The RTRAA does not state that a section 94 claim must be brought within a particular time, or while the tenancy is current, and I am not prepared to read such a proviso into the Act, unless and until authority compels me to do so.[7] The point was not raised in Underwood v Queensland Department of Communities (State of Queensland)[8] although the time between commencement of proceedings and the end of the tenancy was very short[9], making it likely that the claim in that case involved some rent already paid, or overdue. (A long delay may be a different matter; the remedy, after all, is discretionary[10].)
[7] The Adjudicator expressly considered and rejected that suggestion: Decision 3
September 2013 (“Decision”) page 9 lines 7-8.
[8] [2012] QCA 158 (leave to appeal to High Court refused: [2012] HCASL 179).
[9] Claim made on 25 March 2011 and property vacated “in April 2011”.
[10] Underwood v Queensland Department of Communities (State of Queensland) [2012]
QCA 158 at [28].
[13]The Adjudicator based his decision on section 94, which provides for a rent reduction where, inter alia, “the amenity or standard of the premises decreases substantially other than because of malicious damage by the tenant”[11]. In such a case the Tribunal may order a rebate.[12] The Adjudicator noted[13] that section 94 is not subject to the time limit attached to section 419. I see no appellable error in his application of section 94.
[11] RTRAA s 94(2)(b); Wechsel v Andrew (No 3) [2011] QCATA 106 (Wilson J). The
Adjudicator based his decision on that provision, as did the Tribunal in Wechsel (No 3), above: Decision page 8 line 27.
[12] RTRAA s 94(4).
[13] Decision page 8 line 26.
The Floorboards
[14]By way of counterclaim, it is alleged that the Tenants are responsible for damage to bedroom floorboards by causing or allowing water to flow onto them from an adjacent shower recess. The Adjudicator disallowed this claim. Contrary to a plumber’s reconstruction of events, he accepted the Tenants’ evidence that they used a floor mat to minimise the incursion of water onto the bedroom floor,[14] and that this amounted to “look[ing] after it in a good and tenantable manner”.[15] Further, referring to two photographs in evidence, he concluded that the problem was due mainly, if not entirely to “the design of the shower, and the way it is so close to the floorboards [making it] ... inevitable even with the door closed, that water will come out”.[16]
[14] Decision page 6 lines 11-12.
[15] Decision page 6 line 18.
[16] Decision page 6 lines 39-45.
[15]These are findings of fact and credit that the Adjudicator was entitled to make. In particular, he was entitled to prefer the direct evidence of Mrs Parker to the theoretical explanation of the Landlady’s expert[17]. The weight of expert evidence is a question for the judge of fact, namely the Adjudicator.[18] The assertion that there is no evidence to support the decision on this aspect of the case is clearly incorrect, and it is not a function of this appeal Tribunal to re-try questions of fact reasonably decided at first instance. There is no substance in this ground of appeal.
[17] Hollingsworth v Hopkins [1967] Qd R 168.
[18] Holtman v Sampson [1985] 2 Qd R 472 at 474; Davie v Edinburgh Corporation (No 2)
[1953] SC 34.
Other Damage
[16]Kitchen bench: Again the Adjudicator was assisted by photographs as well as oral evidence. He gave careful consideration to this minor claim.[19] A witness for the Landlady variously described the alleged damage as “scratching” or “slight scratching”.[20] Poor quality pictures tendered by the Landlady were inconclusive, and the Tenants’ images showed no damage at all, although it was found that a little did exist in places consistent with contact by shoes with the panel in question. The Adjudicator accepted the Tenants’ evidence[21] that one had to bend down to see it. There was nothing in the agent’s entry report to exclude the possibility that it predated the subject tenancy. In any event, it held to be fair wear and tear.[22]
[19] Decision pages 4-5, particularly page 5, lines 1-39.
[20] Transcript of hearing 3 September 2013 (“Transcript”) page 26 lines 25-32 (Hassan).
[21] Transcript page 27 lines 35-36 (Parker).
[22] Transcript page 5 line 31.
[17]These are findings of fact based on evidence specifically referred to in the primary decision. They are rational findings that were the prerogative of the decision-maker. They do not become an appellable error merely because someone else, reasonably or unreasonably, takes a different view.
[18]Window shutters: This item received relatively little attention.[23] Photographic evidence shows some patches of missing paint, and paint flakes on a window sill. It is common ground[24] that these defects were wholly or partly caused when windows were left open in rainy weather. The Tenants’ claim that this occurred “well before our occupancy”[25] was left in the air, and the Adjudicator reasonably concluded that, in Brisbane’s climate, the condition of the shutters was due to fair wear and tear.[26] The entry report records “all shutters have chips or cracking”. Understandably, the Adjudicator may have regarded as hyperbolic Ms Hassan’s description of these items as “extremely damaged”.
[23] Two pages in a transcript of 49.
[24] Transcript page 48 line 4.
[25] Transcript page 47 lines 44-45.
[26] Decision page 7 line 12.
The rebate – basis and quantum
[19]The principal reason for the rent rebate was the unsatisfactory state of lighting in several parts of the house. A faulty dishwasher was also taken into account. The loss of amenity due to inadequate lighting is treated extensively in evidence and in the decision[27]; it is unnecessary to recite the details here. Suffice it to note this observation:
If somebody is paying $2,100 a week, then they expect high class premises and [that they] be maintained at that level. Problems ... of this sort ... in the light of the type of premises that these were, I do think [were] substantial.[28]
[27] Transcript pages 7-24; Decision pages 7-9.
[28] Decision page 8 lines 35-38.
[20]The Landlady asserts broadly and briefly that the award is “manifestly excessive”[29] without condescending to any critical analysis of the Adjudicator’s reasoning. The authorities recognise, as in reality they must, that there is no precise formula for calculating a section 94 rebate.[30] The Adjudicator settled upon a factor of 9%, subject to a deduction of $1,190 for cleaning a marble floor, and an agreed water charge of $890, resulting in a nett award of $7,748. The Landlady has not offered any reason for regarding that result as a miscarriage of the Adjudicator’s discretion, and no such reason occurs to me.
[29] Application for leave to appeal
[30] Underwood v Queensland Department of Communities (State of Queensland) [2012]
QCA 158 at [26]; Wechsel v Andrew (No 3) [2011] QCATA 106 at [16].
Conclusions
[21]An application for leave to appeal – or appeal – is not an occasion for a retrial de novo, or for “second guessing” of questions of fact or credit that belong to the primary decision-maker. On an application for leave to appeal, the question is whether there is a reasonably arguable case of error which, if not corrected, will cause substantial injustice to the applicant.[31] It is not nearly enough for an applicant to express disappointment, or to entertain a subjective feeling that justice has not been done.[32] The purpose of the “leave proviso” is to preclude attempts to retry cases on the merits,[33] or to introduce evidence or arguments that might have been led in the first place, but in fact were not.
[31] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257 at [6]; Drew v
Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359 at [18]; Felton and Anor v Raine and Horne Real Estate [2011] QCATA 330 at [19]; International Professional Services v Tritone Nominees Pty Ltd [2011] QCATA 332.
[32] Robinson v Corr [2011] QCATA 302 at [7].
[33] Distinguish QCAT Act s 20 (review jurisdiction).
[22]It is not appellable error to prefer one version of the facts to another, or to give less weight to a party’s case than he or she thinks it deserves. Findings of fact will not normally be disturbed where (as here) they have rational support in the evidence, even if another reasonable view is available.[34] Where reasonable minds may differ, a decision cannot properly be called erroneous, simply because one conclusion has been preferred to another possible view.[35]
[34] Fox v Percy (2003) 214 CLR 118 at 125-126.
[35] Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at
[131]; In Re W (an infant) [1971] AC 682 at 700 per Lord Hailsham; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025.
[23]Occasionally leave is granted so as to ventilate some question of general public interest[36], but this is not such a case.
[36] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk
Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580; Paradis v Settlement Agents Supervisory Board (2007) 33 WAR 361 at 372.
[24]I can discern no appellable error in the primary decision. Accordingly leave to appeal must be refused.
ORDER
Leave to appeal is refused.
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