Nally v Winkeler
[2013] QCATA 35
•19 February 2013
| CITATION: | Nally and Anor v Winkeler and Anor [2013] QCATA 35 |
| PARTIES: | Michael Nally Fiona Nally (Appellants) |
| v | |
| William Winkeler Janette Winkeler (Respondents) |
| APPLICATION NUMBER: | APL246-12 |
| MATTER TYPE: | Appeals |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr Richard Oliver, Senior Member Mr David Paratz, Member |
| DELIVERED ON: | 19 February 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to Appeal is granted. 2. The matter is returned to the Tribunal for the hearing of additional evidence as to compensation, and re-assessment of the compensation to be paid. |
| CATCHWORDS: | APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where claim for compensation – where assessment of compensation – where matter returned to Tribunal for assessment of compensation Dearman v Dearman (1908) 7 CLR 549, cited Fox v Percy (2003) 214 CLR 118 , cited Residential Tenancies and Rooming Accommodation Act 2008, ss 32, 420 Queensland Civil and Administrative Tribunal Act 2009, s146(c) |
APPEARANCES 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
Richard Oliver, Senior Member
In this matter the Appeal Tribunal consisted of Mr Paratz and me. I have had the benefit of reading his reasons in draft. I agree with his reasons, and his conclusions, and the order he proposes.
David Paratz, Member
This is an appeal from the decision of an Adjudicator in a tenancy dispute.
An application was filed by Mr and Mrs Winkeler on 18 April 2012 in the Beaudesert Registry against Mr and Mrs Nally seeking $3,179.29.
The claim was comprised as follows:
Rent arrears $ 2,314.29
Cleaning $ 370.00
Mow, weeding and cleaning grounds $ 495.00
The matter was heard on 26 April 2012. The hearing took 2 hours 13 minutes. The decision was reserved and was handed down on 7 June 2012.
The learned Adjudicator ordered that the Nallys pay to the Winkelers the amount of $2,250.00 made up as follows:
Rent for 4 weeks $1,800.00
Cleaning $ 250.00
Yard maintenance $ 200.00
The Nallys filed an appeal on 26 July 2012 on these grounds:
The learned Adjudicator erred in finding that the Applicant’s notices did not lawfully terminate their tenancy agreement and had effectively abandoned the premises.
The learned Adjudicator erred in not applying s 362 (mitigation).
The learned Adjudicator erred in not giving adequate reasons for finding the applicants liable for cleaning and work expenses.
The learned Adjudicator erred in awarding compensation under s 420 when no application under s 419 was before the Tribunal. The application was s 429 (general dispute) application.
The Winkelers filed submissions as to the appeal on 4 October 2012. The Nallys advised that they did not propose to lodge further submissions.
The matter concerns the rental of a rural property at 108 Williamson Road, Tamborine Village, Queensland.
The Nallys gave several notices of breach to the Winkelers regarding numerous alleged defects in the property including odour from the septic tank, electrical installations, vermin, internal mould, and faults in the external stairs.
The Nallys left the premises on 8 March 2012. The tenancy was due to expire on 13 April 2012.
The Winkelers claimed unpaid rental for the five weeks between the date the Nallys left and the end of the term, but this was in effect damages for wrongful termination of the lease.
The Nallys argued on the hearing that the premises were unfit to live in, and that they were entitled to leave.
Evidence was adduced that the Nallys had purchased a property through the letting agent, and moved into it before the end of the lease. The learned Adjudicator commented on this as follows:
Adjudicator: Well, it’s convenient isn’t it; it smacks of some convenience that you left purportedly on the basis that the property wasn’t fit to live in but you also moved into a home that you had purchased at the same time?[1]
[1] Transcript of Proceedings, p. 18.
There was disagreement as to the state of the premises at the start and end of the tenancy, as to the extent and cost of cleaning, and whether works to maintain the grounds which were the tenant’s responsibility under the lease were properly carried out.
The Nallys issued three different breach notices. They made lists of items that required repair.
The Nallys claimed that an electrical power lead to a waste water holding tank was not remedied quickly enough, although it was remedied in the first week of March, before they left. Other defects were remedied such as a power socket at the wood box, and dripping taps. Other defects were not remedied such as an outdoor power socket to the waste tank, front door outside light, en-suite light, door handle for the laundry, and mould on a cornice.
The Winkelers contended that they attempted to have the electrical matters remedied, but that the Nallys were unco-operative in arranging times. Mrs Nally was asked about arranging times: at page 24 of the transcript:
Ms Nally:Your honour, we felt that adequate time lapse and adequate opportunities had come and gone for these repairs to have been attended to in a prompt manner because the house was – we were continually in danger.
Adjudicator: But you were the one that refused access to an electrician.
Ms Nally: You have a right on a Sunday.
Adjudicator: You have but then you can’t turn around and say it say it was so urgent, why didn’t you come urgently, surely?
Ms Nally: There were other times and there was more than one electrician.
Adjudicator: You have to be reasonable, don’t you; don’t you have to be reasonable?
Ms Nally: We were being very reasonable, your honour. There was more than one electrician and I was available during the day.[2]
[2] Transcript of Proceedings, p 24.
On 2 March 2012 an electrician did attend with Mr Winkeler, but Mrs Nally insist he could only stay for two hours, which was insufficient time for him to complete the work, as she had to go to an event at her sons prep school. The learned Adjudicator asked why they could not stay and complete the work:
Adjudicator: Why didn’t you just let them stay there and finish – wait on, don’t interrupt.
Ms Nally: The reason being is because the Winkelers had refused to appreciate our peace and quiet enjoyment of the property. At times he was very aggressive and angry towards me.[3]
[3] Transcript of Proceedings, p 15.
Mr Winkeler is a plasterer by trade. He said the mould on the ceiling was only about 6 inches across, and the mould on the cornice was only about 18 inches, which he could easily have fixed, but that Mrs Nally told him to leave it until the weather fined up. He said that he would have had the job finished within half an hour on the 2 March 2012, but that Mrs Nally said they had to leave, and he packed up and left.
The learned Adjudicator commented on amounts that were usually awarded for breaking a tenancy as follows:
Adjudicator: Well, when a tenant abandons premises, the lessor is under an obligation to mitigate loss. What that means is the lessor has to go out and find somebody else. Well if they haven’t found it within the claim period, we look at how long its taken, five weeks. In Beaudesert generally through to Brisbane, I think a consensus among members and Adjudicators of QCAT is that it should take about four weeks, five weeks sometimes I suppose and three weeks sometimes. It doesn’t seem excessive to me.[4]
[4] Transcript of Proceedings, p 5.
The learned Adjudicator found that the Nallys had broken the lease without justification, and awarded damages in terms of weeks of unpaid rent.
No evidence was given by the Winkelers as to how long it took to find a substitute tenant, and the steps they took. The learned Adjudicator awarded an amount of $1,800.00 being four weeks rent.
The cleaning was carried out by the Nallys themselves. Mrs Winkeler explained this as follows (page 35 Transcript):-
Adjudicator: You did your own cleaning?
Ms Winkeler: Yes
Adjudicator: How did you calculate the $370?
Ms Winkeler: I got a quote from two other cleaners which you’ve got up there and I just calculated it out at $18 an hour for the things I’d done.
Adjudicator: So this is a quote “Gal’s Cleaning service” and they quoted $469?
Ms Winkler: That’s right. I didn’t think I was a professional and I think the other one is from Lazer’s Maid Service.[5]
[5] Transcript of Proceedings, p 35.
The cleaning of the grounds and mowing was also carried out by the Winkelers. Mrs Winkeler explains their claim as follows:
Adjudicator: So the quote from Bunya Property Services was $390 all up with GST or $355 without GST. Yours is dearer again isn’t it?
Ms Winkeler: Yes, because we had the stable to clean out because they had a couple of little ponies. We had the stables to clean and we also had the shed and it’s a two bay shed. There are three or four workshop rooms inside to clean as well and to take a lot of rubbish to the dump. We weren’t quite sure of the charge on us for being private people.
Adjudicator: So the extra amount you say goes towards the care of the animals, the stables cleaning them out?
Ms Winkeler: Cleaning the stables and to do the sheds and carports and the driveway. The gardener that I got to come out and quote didn’t allow for it in his quote.[6]
[6] Transcript of Proceedings, p 36.
Mrs Winkeler did not explain how many hours they had spent cleaning the house or the grounds, or substantiate the rate of $18.00 per hour which she referred to as a reasonable charge.
I have read the transcript of the proceedings. Evidence was heard from Mr and Mrs Winkeler, and from Mrs Nally, as to the alleged breaches by the landlord, and as to the cleaning required after the tenants left.
I am satisfied that the learned Adjudicator properly heard the evidence in relation to the alleged breaches of the tenancy as to the fitness of the premises, and properly considered that evidence.
I am satisfied that the learned Adjudicator had reasonable basis upon which to reject the allegations that the premises were unfit to live in.
I am also satisfied the finding of the learned Adjudicator as to the entitlement of damages to the Winkelers for breach of the tenancy by the Nallys is properly made.
The Tribunal has wide ranging powers under s 28 of the QCAT Act as to the conduct of its proceedings. The learned Adjudicator was able to make an order on an Application for a Minor Civil Debt under s 13(2)(b) of the QCAT Act pursuant to s 420 of the Residential Tenancies and Rooming Accommodation Act 2008.
However, I am not satisfied that the learned Adjudicator heard appropriate evidence as to the quantum (or amount) of the damages for breach of the tenancy. The learned Adjudicator did not have sufficient evidence before him upon which to properly assess the amount of damages in this matter. He applied a usual period of four weeks that has often applied in such situations, but that is not based on evidence before him in this matter. In this respect, I do not consider that the judgment can stand.
Similarly, I am satisfied that the learned Adjudicator properly heard the evidence in relation to the cleaning required, and the failure to maintain the grounds, and properly considered that evidence in finding that the Winkelers were entitled to compensation for the cost of cleaning the house and grounds.
However, I am similarly not satisfied that the learned Adjudicator heard appropriate evidence as to the quantum (or amount) of those damages either. The learned Adjudicator did not have sufficient evidence before him upon which to properly assess the amount of damages in respect of cleaning and yard maintenance. In this respect also, I do not consider that the judgment can stand.
Because this is an appeal from a decision of the Tribunal in its Minor Civil Dispute jurisdiction, leave is necessary. Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?
Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[7]
[7]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-26.
There is nothing in the transcript that persuades me that the learned Adjudicator should have taken a different view of the facts.
There is a reasonably arguable case that the learned Adjudicator was in error as to the calculation of damages; there is a reasonable prospect of substantive relief on appeal; and there is evidence that a substantial injustice will result if leave is not granted. Leave to appeal as to the calculation of damages should be granted.
There is no need for the matter to be reheard in full. The merits of the case have been properly heard and decided. However, I consider it is necessary for the matter to be returned to the tribunal for reconsideration under s 146(c) of the QCAT Act as to the assessment of the quantum of damages.
I order that Leave to Appeal be granted, and order that the matter be returned to the Tribunal for the hearing of additional evidence and re-assessment of the compensation to be paid.
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