Noble v Shaw
[2024] QCATA 124
•14 November 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Noble v Shaw [2024] QCATA 124
PARTIES:
BRADLEY LLOYD NOBLE (applicant/appellant)
v
GREGORY EDGAR SHAW (respondent)
RHONWYN MAREE SHAW
(RESPONDENT)
APPLICATION NO/S:
APL063-23
MATTER TYPE:
Residential tenancy matters
DELIVERED ON:
14 November 2024
HEARING DATE:
3 June 2024
HEARD AT:
Brisbane
DECISION OF:
Member Bertelsen
ORDERS:
Application for leave to appeal is refused
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – tenancy agreement – where tenant sought diminution of rent based on text message prior to execution of tenancy agreement – where adjudicator denied rent decrease – where tenant sought recompense for loss of amenity – lack of dishwasher, defective bathroom and laundry changes – where adjudicator at first instance granted limited relief.
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 71, s 94, s 419
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142
Pickering v McArthur [2005] QCA 294
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)
REASONS FOR DECISION
On 9 September 2022 the original applicant Bradley Lloyd Noble (‘Mr Noble’) filed an application for a minor civil dispute - residential tenancy dispute at Southport against Rhonwyn Maree Shaw and Gregory Edgar Sha (‘the Shaws’) seeking a sum of $4,599.70 made up as follows.
(i) Rental refund - $105.00 from 17/6/22 $1,260.00.
(ii) Rent compensation ensuite - $100.00 from 29/3/22 $2,400.00.
(iii) Rent compensation laundry - $20.00 from 15/2/22 $600.00.
(iv) Rent compensation D/W - $10.00 17/6/22 $120.00
(v) Filing fee $130.70.
(vi) Photocopying $89.00.
(vii) Total of claim $4.599.70.
from the Shaws in respect of the Tenancy of unit 76, Waratah, 22 Montgomery Avenue, Main Beach (‘the unit’). On 17 February 2023 the application was heard by an Adjudicator who ordered the Shaws pay to Mr Noble the sum of $1,730.00 by 3 March 2023. The rent refund claim, the laundry compensation claim, and the dishwasher claim were all dismissed. The Adjudicator awarded $50.00 per week in respect of the ensuite compensation claim which centred around a broken tile considered a hazard. The $50.00 per week was calculated for the period 29 March 2022 to 25 November 2022 some eight months. The filing fee of $130.70 was allowed.
On 8 March 2023 Mr Noble filed an application for leave to appeal or appeal seeking Tribunal orders for rent refund, ensuite repairs, laundry restoration, dishwasher installation and filing fees.
The first ground of appeal – rent refund.
The Shaws had owned the unit since 1996. Mr Noble had been a tenant since 2015. There had been yearly tenancy agreements entered into since that time the last of those being the tenancy agreement for the period 17 June 2022 to 18 June 2023 recording a rent of $750.00 per week and signed on 22 April 2022 by the Shaws and Mr Noble on the 11 May 2022. On the same day he signed the tenancy agreement Mr Noble wrote a letter to Kellie and Nick Kerr the property managers at the time reserving his rights with respect to weekly rent and the state of the premises which he said was unfit for occupation. With respect to weekly rent Mr Noble referred to a text message from Kellie Kerr as follows.
Hi Brad, Rhonwyn is giving you a new lease for 12 months starting Friday 17 June. I’ll put it in your letter box. Prior to commencing she wants a formal inspection, and they are to occur every 3 months. Rent will increase to $645.00. Many thanks Kellie.
Mr Noble replied, “Thanks Kellie, appreciate your help”.
Kellie Kerr replied “They want to sign the lease themselves so give me a couple of days to get it back. I’ll let you know. No worries. Have a good weekend”.
Mr Noble asserted offer and acceptance. He referred to the statutory declaration of property manager (Rachael) Kellie Kerr wherein she said she received an email from the Shaws on 31 March 2022 advising rent at $645.00 per week. Ms Kerr in her capacity of property manager had authority to make the offer of a new tenancy to Mr Noble. But the Adjudicator disagreed finding that the exchange between Mr Noble and Ms Kerr did not constitute a binding contract. He considered the SMS messages Ms Kerr sent Mr Noble on 1 April 2022 were no more than a preliminary indication of the potential terms of a future tenancy agreement. Ms Kerr made it plain in her message to Mr Noble that the Shaws wished to sign the tenancy agreement themselves. Mr Noble stated that on Tuesday 5 April 2022 he attended the property manager’s office where he was informed the owners had changed their minds and were putting the weekly rent up to $750.00.
In the context of the Shaws wishing to sign any further tenancy agreements themselves and the long history of formal binding tenancy agreements it was reasonable for the Adjudicator to conclude that Ms Kerr did not possess the requisite authority to bind the Shaws to any contractual arrangement at that point (in an email). It was reasonable for the Adjudicator to find that such authority reposed solely in the Shaws. That being so there was no basis for rent reduction.
The second ground of appeal – broken tile ensuite bathroom.
Mr Noble asserted that on 3 February 2022 he cut his foot on a sharp-edged broken tile in the ensuite bathroom. The Adjudicator believed him. On 15 February 2022 a handyman attended the premises and applied a temporary silicone repair to the broken tile. As that did not appear to work a handyman attended again on the 23 February2022 and applied grout in lieu of the silicone. But the grout deteriorated such as to be ineffective. Ms Kerr attended the unit on 29 March 2022. She felt the broken tile had a sharp edge and asked Mr Noble not to use the shower.
The Shaws for their part said they attended the unit with a tiler on 8 September 2022. The broken tile did not appear particularly sharp to them. The tiler advised them to retile the shower floor. The same day they purchased tiles. However, the tiler was not able to undertake retiling until the end of January 2023.
Where a maintenance issue such as this occurs and there is no repair effected within an acceptable period a tenant may undertake such repair and invoice the owner. This issue went on from beginning of February 2022 through to date of hearing and it seems beyond. The Shaws are experienced owners and Mr Noble an experienced tenant. Whilst it is accepted that getting tradespersons to undertake small jobs in the current shortage’s climate it is staggering that none of the owners, the tenant nor the property manager have been able to get the job done. Additionally, this Appeal Tribunal does not find the broken tile photographic evidence particularly compelling. As a temporary measure some form of covering could have been placed over the tiled shower floor to keep it usable thus reducing loss of amenity. Having said that the Appeal Tribunal agrees some loss of amenity occurred warranting compensation. It seems that the Adjudicator awarded a sum considering the extent of loss and the extended time frame involved. On the evidence before him it was open to the Adjudicator to calculate loss of amenity in the way he did. It was not incumbent on him to indulge in some sort of future loss finding. His finding of loss of amenity at $1,600.00 stands.
The third ground of appeal – hot water system.
The hot water system was replaced in February 2022. The old hot water system had apparently been there for some twenty-seven years probably since construction of the unit complex. The new hot water system is larger and could not fully be accommodated in the reserved cupboard space. As a result, the cupboard door and shelving were removed. As well the assertedly sharp edged drip tray protruded such as to create a trip hazard. The protrusion as depicted in photos appears to be 1.5 to 3.5 centimetres over the alignment of taken off cupboard door. The tray does not appear to be particularly sharp-edged nor particularly curve edged. In short, it is a standard drip tray, the sort observed in numerous applications that have come before the Tribunal. The hot water system installation was Australian Standards compliant. The inconvenience, if any, is so minimal such as to not create any loss of amenity. It was open to the Adjudicator to conclude there was no loss of amenity warranting compensation.
The fourth ground of appeal – the dishwasher.
Mr Noble initially stated that the dishwasher issue had been ongoing for some four years but only claimed compensation from 17 June 2022. There was no evidence to support the assertion that complaint had been made four years prior. Deinstallation of the dishwasher became problematic due to water remaining in the dishwasher over a prolonged period creating possible toxins in the dishwasher. The Shaws stated the first they became aware of an issue with the dishwasher was via the property manager Ms Kerr on the 17 May 2022. In any event it was Mr Noble’s responsibility to report maintenance issues to the property manager. Nonetheless the Shaws say they purchased and paid for a new dishwasher including the cost of removal of the old dishwasher. They asserted difficulties in accessing the unit to measure up for a new dishwasher and install in a timely manner. With the dishwasher having been defunct for such a long period of time it is little wonder the Adjudicator viewed the latter-day claim for loss of use with some scepticism. Viewing the whole dishwasher issue, it was open to the Adjudicator to reject the claim.
Given this is an appeal from a decision made in the Tribunal’s minor civil dispute jurisdiction leave to appeal must first be obtained before any appeal proceeds.[1]
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142 (3)(a)(1).
Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is reasonable argument that there is an error to be corrected.[2] The Tribunal at first instance referred to the evidence which it was entitled to weigh to support its ultimate findings. A decision cannot be categorised as erroneous simply because the Tribunal preferred one conclusion over another nor is it an error to prefer one version of events over another.
[2]Pickering v McArthur [2005] QCA 294.
The four grounds of appeal are only in the nature of further assertions which have been traversed or decided upon at initial hearing. Leave will not be granted where a party simply desires to reargue the case on existing or additional evidence. A clear purpose of the requirement for leave before a party has a right of appeal, is to prevent any attempt to simply conduct a retrial on the merits of the case. An application for leave to appeal is not, and should not be, an attempt to reargue a party’s case at the initial hearing.
The Appeal Tribunal finds nothing to indicate that the Tribunal at first instance acted upon a wrong principle or made mistakes of fact affecting its decision or was influenced by irrelevant matters. The evidence was capable of supporting the Tribunal’s conclusions.
There is no question of general importance for the Appeal Tribunal to determine. There is no reasonably arguable case that the Tribunal was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.
The Appeal Tribunal’s order is that leave to appeal is refused.
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