Mayer v Jenny Andrews Real Estate
[2013] QCAT 146
| CITATION: | Mayer v Jenny Andrews Real Estate [2013] QCAT 146 |
| PARTIES: | Andrew Mayer (Applicant) |
| v | |
| Jenny Andrews Real Estate, Michelle Holmes (Respondents) |
| APPLICATION NUMBER: | MCDO270/12 |
| MATTER TYPE: | Residential tenancy matters |
| HEARING DATE: | 11 December 2012 |
| HEARD AT: | Pine Rivers |
| DECISION OF: | Louise McDonald, Member |
| DELIVERED ON: | 10 January 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application is dismissed. |
| CATCHWORDS: | RESIDENTIAL TENANCIES – COMPENSATION – where phone system in premises inactive – where tenant made improvements to the premises – whether tenant entitled to recover for loss of income – whether tenant entitled to recover for cost of improvements Residential Tenancies and Rooming Accommodation Act 2008 s 185 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Andrew Mayer |
| RESPONDENT: | Luke Jones, Michelle Holmes |
REASONS FOR DECISION
The applicant has filed a minor civil dispute arising under the Residential Tenancies and Rooming Accommodation Act 2008. He makes claim for $18,740 that being:
“Loss of wages as a result of the inactive phone system, ($15,000), the cost repair of the internal home hub system $700, and home improvements including dishwasher, Foxtel, “etc, valued at $3, 040.”
He claims compensation for the loss of business as a result of having his internet home based business unable to operate during the period that the home hub was inactive. He argued the information that the premises had a home hub was misleading and he would not have entered the tenancy had he been aware that the home hub was not in working order.
His application notes that the basis of his claim is an “unjustified claim against the tenant, excessive amount against the tenant.” In submissions provided with the application the applicant states:
“We felt at the time as tenants the money invested into the properties amenities plus loss of income maintenance done by us were sufficient compensation for the lessor.”
Some aspects of his submissions pertain to the insurance claim being pursued against him by the owner through landlord insurance. These notes state that his application to the Tribunal has been initiated in the context of the owner’s insurer pursing him for unpaid rent.
The Respondent has provided copies of previous orders and informed the Tribunal that two hearings were held during the short tenancy, where the applicant has been found in breach of rental payment obligations, and ultimately a warrant of possession issued in this matter. It would appear that insurer is pursuing unpaid rent outstanding, and ordered to be paid under the Tribunal orders of 2 December 2011 and 24 February 2012. The Tribunal has already determined that amount of rent was outstanding under orders of these dates. The Respondent’s insurer has taken action for debt recovery. The orders pertaining to outstanding rent owed by the tenant were not appealed by the applicant within the appeal timeframe within s 143 of the Queensland Civil and Administrative Tribunal Act 2009.
Connectivity issues
That applicant submitted that he was without access to connectivity in order to operate his home based business due to the failure in lines including the home hub system.
Ms Holmes, the owner, asserts that she made no promises about the Hills Hub system. She provided the Tribunal with a copy of the email in which she instructed the agents about the system before the applicant’s entry. The email reads:
“ You may wish to advise the tenants that the property has a hills hub smart wiring and this may or may not be of assistance with reference to their telephone and data requirements.”
The applicant stated he took the house because it had a hills hub system. It was not working when he entered the premises. He stated that he contacted the respondent property manager to advise of this on 1 July 2011, upon his entry to the premises, and received no response for 8 days. He made his own enquires with Telstra as a result of this. He was advised, initially that it was an internal problem. On 22 July some lines were active and some were not. He advised that his client’s enquiries on his business line went to voicemail to which he had no access. Other lines were open but crackly.
He provided an invoice dated 22 July from ASTAR Pty Ltd to install data and phone which included materials and labour. This invoice suggests that the invoice was for installation, and I note that the installation of additional lines was according to the residential tenancies agreement executed by the parties on 15 June 2011, was to be carried out at his cost.
[10] By correspondence of 7 August 2011 the applicant sought re-imbursement of his losses from Telstra, in which he informed Telstra his losses of $40,000 per month were as a result of faulty external equipment.
[11] Emailed correspondence from Telstra to the applicant dated 9 November 2012 summarised Telstra’s dealings on the repair work orders related to the problems with his connection.
[12] On 1 July 2011 he was advised by Telstra that he needed to have the internal lines checked and as the system was not a Telstra product.
[13] He then installed a bigpond wireless as an interim measure on 8 July 2012, and no connection was able to be attained. The technician “looked into the hills hub interface”. The technician determined that this was beyond his capabilities. The master interface was not laid out on any schematic for him to follow. The applicant was charged for this time. On the next visit on 13 July 2011 the technician reported external lines may be corrupted and consequently Telstra conducted a number of investigations and ultimately on 25 July 2011, Telstra advised him that the problem arose from external line damage that is from the poles to the house the damaged external lines. These were remedied on 18 August 2012. For that period the applicant was unable to operate his business.
[14] It is not clear from the Telstra correspondence that there was indeed an issue with the hills hub system, although there was some initial suggestion this was the source of the problem. It is clear that there has been external lines problems which are the responsibility of Telstra and not the lessor. While the applicant may have experienced loss of income due to connectivity issues, there is no evidence to suggest that the lessor was responsible for this loss. There is no remedy within the Residential Tenancies and Rooming Accommodation Act 2008 for his loss.
[15] Therefore the claim for compensation for loss of income in this residential tenancy dispute must be dismissed.
[16] The applicant claims in his written submission that tenants failed to provide clean premises on commencement. The lessor’s obligations under s 185 of the Residential Tenancies and Rooming Accommodation Act 2008 are to ensure the premises are clean, fit to live in and in good repair. The entry condition report signed by the parties indicates the property was in clean and undamaged condition upon entry to the premises, and the tenants have signed this document on 1 July 2011. The Tribunal therefore does not accept that the lessor was in breach of these obligations.
[17] The balance of his application and oral submissions pertain to his claims that he should be compensated for doing home improvements he made during the tenancy.
Improvements
[18] The residential tenancies agreement signed by the parties on 15 June 2011, indicates that additional phone points, Foxtel and the dishwasher may be installed by the tenant at the tenant’s cost. Any claim for those home improvements should be dismissed as it is clearly a special term of the contract that the tenant bear these costs.
Conclusion
[19] The application should be dismissed.
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