McKinnon v Kirdy - [2003] QSC 302

SUPREME COURT OF QUEENSLAND

CITATION:

McKinnon v Kirdy [2003] QSC 302

PARTIES:

RUSSELL DAVID McKINNON
(plaintiff)
v
DIANNE KIRDY
(defendant)

FILE NO/S:

S2571 of 2001

DIVISION:

Trial Division

PROCEEDING:

Trial

DELIVERED ON:

16 September 2003

DELIVERED AT:

Brisbane

HEARING DATE:

21-22 August 2003

JUDGE:

Mullins J

ORDER:

The plaintiff’s claim be dismissed

CATCHWORDS:

CONTRACTS - landlord and tenant – residential tenancies– breach of contract – where tenant injured whilst undertaking repairs to fence on the premises – where obligation on landlord at commencement of tenancy to ensure that the premises where in reasonable repair and fit for the tenant to live in - no breach of those obligations – where obligation on landlord to maintain the premises in good repair- where obligation on tenant to give notice of the need for repairs – where tenant failed to give notice – landlord not in breach of contract for not having undertaken repairs

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – REASONABLE FORSEEABILITY OF DAMAGE – PARTICULAR CASES – landlord and tenant – common law duty of landlord – whether premises maintained in safe repair

Residential Tenancies Act 1994
Residential Tenancies Amendment Act 1998

Austin v Bonney [1999] 1 QdR 114
Bond v Weeks [1999] 1 QdR 134
Cockburn v Smith [1924] 2 KB 119
Fine v Geier [2003] QSC 73
Jones v Bartlett (2000) 205 CLR 166
O’Brien v Robinson [1973] AC 912

COUNSEL:

RW Morgan for the plaintiff
SC Williams QC for the defendant

SOLICITORS:

Klooger Phillips Scott for the plaintiff
Walsh Halligan Douglas for the defendant

MULLINS J: On 4 January 1999 Mr Russell David McKinnon (“the plaintiff”) was injured, as he climbed the fence which was 1.8m high on the rear boundary of the residential house property situated at 48 Avocado Crescent, Bli Bli (“the property”) which he was renting at that time from Ms Dianne Kirdy (“the defendant”). He claims damages for personal injuries caused by the negligence and/or breach of contract of the defendant.

Residential tenancy

The plaintiff who was born on 11 October 1959 required accommodation for himself and 2 of his children, Megan who was born on 7 October 1982 and Steven who was born on 18 August 1983.

On or about 12 January 1998, the plaintiff entered into a written residential tenancy agreement with the defendant in respect of the property. The plaintiff negotiated the agreement with the defendant’s real estate agent. The plaintiff inspected the property with the agent, before entering into the agreement. The plaintiff described the general condition of the house as poor, but that the agent indicated that some repairs were intended to be done. The plaintiff observed that there were some palings missing from the rear fence. The plaintiff informed the agent that he had a poodle. The agent indicated that that was not a problem, but stated, “…you’ll just have to fix up the fence to keep the dog”. When the plaintiff commenced living at the property, he put some…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McKinnon v Kirdy

Details

AGLC: McKinnon v Kirdy [2003] QSC 302
Case: [2003] QSC 302
Decision Date: 16 September 2003

CaseChat Overview and Summary

McKinnon v Kirdy was a dispute between a tenant and a landlord concerning a breach of contractual obligations and potential negligence. The tenant, Mr McKinnon, had been injured while repairing a fence on the rental property. He claimed that the landlord, Mr Kirdy, breached his contractual obligations by failing to ensure the premises were in reasonable repair and fit for living. Additionally, Mr McKinnon argued that the landlord's negligence led to his injuries. The matter was heard in the Supreme Court of Victoria.

The primary legal issues before the court were whether the landlord breached his contractual obligations and whether he owed a duty of care to the tenant that was breached. The court needed to determine if the landlord was required to ensure the premises were in good repair and if there was a duty to maintain the property in a safe condition. It also had to consider whether the tenant's failure to notify the landlord of the need for repairs absolved the landlord of any obligation to undertake those repairs.

The court found that the landlord had fulfilled his initial obligation to ensure the premises were in reasonable repair and fit for the tenant to live in at the start of the tenancy. The landlord's primary responsibility was to maintain the property in good repair, and the tenant was required to notify the landlord of any necessary repairs. The court concluded that the landlord was not in breach of his contractual obligations because the tenant failed to give notice of the need for repairs. Furthermore, the court held that the landlord did not owe a common law duty of care to the tenant in the circumstances of this case. The tenant’s failure to notify the landlord precluded any negligence claim against the landlord.

The court dismissed the plaintiff's claim, finding that the landlord had not breached his contractual obligations or any common law duty of care.

Orders

Orders of the court

The plaintiff’s claim be dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	McKinnon v Kirdy [2003] QSC 302
PARTIES:	RUSSELL DAVID McKINNON (plaintiff) v DIANNE KIRDY (defendant)
FILE NO/S:	S2571 of 2001
DIVISION:	Trial Division
PROCEEDING:	Trial
DELIVERED ON:	16 September 2003
DELIVERED AT:	Brisbane
HEARING DATE:	21-22 August 2003
JUDGE:	Mullins J
ORDER:	The plaintiff’s claim be dismissed
CATCHWORDS:	CONTRACTS - landlord and tenant – residential tenancies– breach of contract – where tenant injured whilst undertaking repairs to fence on the premises – where obligation on landlord at commencement of tenancy to ensure that the premises where in reasonable repair and fit for the tenant to live in - no breach of those obligations – where obligation on landlord to maintain the premises in good repair- where obligation on tenant to give notice of the need for repairs – where tenant failed to give notice – landlord not in breach of contract for not having undertaken repairs TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – REASONABLE FORSEEABILITY OF DAMAGE – PARTICULAR CASES – landlord and tenant – common law duty of landlord – whether premises maintained in safe repair Residential Tenancies Act 1994 Residential Tenancies Amendment Act 1998 Austin v Bonney [1999] 1 QdR 114 Bond v Weeks [1999] 1 QdR 134 Cockburn v Smith [1924] 2 KB 119 Fine v Geier [2003] QSC 73 Jones v Bartlett (2000) 205 CLR 166 O’Brien v Robinson [1973] AC 912
COUNSEL:	RW Morgan for the plaintiff SC Williams QC for the defendant
SOLICITORS:	Klooger Phillips Scott for the plaintiff Walsh Halligan Douglas for the defendant