Noble v Shaw - [2024] QCATA 124

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…

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 Noble v Shaw

Details

AGLC: Noble v Shaw [2024] QCATA 124
Case: [2024] QCATA 124
Decision Date: 14 November 2024

CaseChat Overview and Summary

The appellant, Noble, sought an appeal against the decision of the first respondent, Shaw, which was made by the adjudicator. The dispute centred around a tenancy agreement where Noble argued for a reduction in rent, claiming the reduction was based on a text message sent prior to the execution of the tenancy agreement. Furthermore, Noble sought compensation for loss of amenity due to the lack of a dishwasher, a defective bathroom, and laundry changes. The adjudicator denied the rent decrease but granted limited relief for the loss of amenity.

The legal issues before the court were whether the appeal lay under the statutory provisions, and whether the adjudicator's decision to deny a rent decrease and grant limited compensation for loss of amenity was correct. The court had to determine if the text message could be considered as an enforceable term in the tenancy agreement and if the loss of amenity was sufficient to warrant compensation.

The court held that the appeal did not lie as it was not within the statutory provisions for an appeal. The court found that the text message did not constitute an enforceable term in the tenancy agreement, as it was not part of the written agreement or an implied term. The court also found that the loss of amenity was not significant enough to warrant compensation beyond what had already been granted. The court concluded that the adjudicator's decision was correct, and therefore, the application for leave to appeal was refused.

The court's final order was that the application for leave to appeal was refused. This means that the decision of the adjudicator stands, and Noble is not entitled to a reduction in rent or additional compensation for loss of amenity.

Orders

Orders of the court

Application for leave to appeal is refused

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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